Posted April 29, 2014
A State Department official speaking at an immigration law conference in Washington, DC on April 11, 2014, warned that higher than anticipated usage in the EB-5 immigrant investor green card category may require the State Department to impose a cut-off date this summer. If so, this would be the first time the EB-5 category would have a backlog in its 24-year history.
As background, every employment-based (EB) immigrant visa category has an annual limit. For EB-5, it is approximately 10,000 visas a year. That number includes principal EB-5 investors, their spouses, and their children under 21.
The State Department publishes a Visa Bulletin each month to let people know which green card categories are backlogged and by how much. The Visa Bulletin is available athttp://travel.state.gov/content/visas/en/law-and-policy/bulletin.html. If the Visa Bulletin says a certain category is “C,” that means the category is “current” and has no backlogs other than the processing times at the U.S. Citizenship and Immigration Services (USCIS) and the State Department’s National Visa Center (NVC). If a date appears for a certain category, that means the category is backlogged, or “retrogressed,” and the State Department is setting up visa interview dates only for people who have started their green card process before the date indicated on the Visa Bulletin. That date is known as the person’s “priority date.” For EB-5 cases, a person’s priority date is the date the USCIS receives their I-526 petition.
So far the number of people receiving EB-5 visas each year has never reached the annual limit, so the category has always been “current.” As usage has increased recently, however, the State Department has warned that it may need to set a cut-off date. The State Department’s announcement on April 11 cautioned that it may not be until June or later before it decides whether or when to impose a waiting list for EB-5 investors. The State Department also did not indicate how long the backlog might be.
Investors from mainland China constitute about 80% of all EB-5 petitions. The State Department would create a waiting list for Chinese investors first to make certain that some EB-5 green cards remain available for investors from other countries.
For more information about EB-5 retrogression generally, seehttps://millermayer.box.com/s/b9ittptj1gsqt351cd4f.
We will continue to monitor the situation. In the meantime, investors should file their I-526 petitions as soon as possible so that their EB-5 priority date will be as early as possible. This will help them when EB-5 retrogression occurs.