By: Bernard Wolfsdorf, Joseph Barnett, and Robert Blanco
The U.S. Department of State (“DOS”) released the October 2018 Visa Bulletin yesterday, summarizing the availability of immigrant visas for the first time in Fiscal Year 2019, which begins on October 1, 2018. Here are five things to know about the new visa bulletin:
1. Worldwide EB-1 Backlog
Demand for employment-based, first-preference (“EB-1”) remains high, and a Final Action Date (“FAD”) of April 1, 2017 has been imposed for all countries. For EB-1 nationals chargeable to China-mainland and India, the FAD moved 4.5 years from January 1, 2012 to June 1, 2016. The September 2018 Visa Bulletin indicated there would be “limited, if any forward movement” for this visa category prior to December 2018.
2. India and China EB-2/3
Some relatively good news here, as the FAD for India EB-2 moved January 1, 2007 to March 26, 2009, and the FAD for India EB-3 moved from January 1, 2003 to January 1, 2009. However, the FAD for India EB-2 in the October 2017 Visa Bulletin was only September 15, 2008, which appears to indicate movement of only 6 months each year. On the other hand, the FAD for India EB-3 in the October 2017 Visa Bulletin was October 15, 2006, suggesting a faster movement. The FAD for China EB-2 moved from January 1, 2013 to April 1, 2015.
3. China and Vietnam EB-5
This category remains backlogged for China, with movement of only one week to August 15, 2014, which is consistent with past practice. Unfortunately, the China-mainland EB-5 date in Chart B – Date for Filing Applications is only October 1, 2014, suggesting only 1.5-2 months of movement in FY 2019. Nationals chargeable to Vietnam are subject to an FAD of January 1, 2016, a big jump from August 8, 2014 last month. Starting October 1, 2018, only those Vietnamese nationals with approved Form I-526s filed before January 1, 2016 will be able to move to the next stage of the EB-5 process. We expect India to join China and Vietnam as the third backlogged EB-5 country next year but are hopeful that the India FAD will progress similar to Vietnam.
4. EB-5 Regional Center Program
Like previous visa bulletins during which the Regional Center program could sunset, the October 2018 Visa Bulletin states:
Section 204 of the Consolidated Appropriations Act, 2018 (Public Law 115-141) extended this immigrant investor pilot program until September 30, 2018. The I5 and R5 visas may be issued until close of business on September 30, 2018, and may be issued for the full validity period. No I5 or R5 visas may be issued overseas, or final action taken on adjustment of status cases, after September 30, 2018.
The final action dates for the I5 and R5 categories have been listed as “Unavailable” for October. If there is legislative action extending them for FY-2019, the final action dates would immediately become “Current” for October for all countries except China-mainland born I5 and R5, which would be subject to an August 15, 2014 final action date and Vietnam I5 and R5, which would be subject to a January 1, 2016 final action date.
Congress will seek to extend the short-term continuing resolution to December 7, 2018 before the midterm elections in November 2017, and the extension of the EB-5 Regional Center program appears to be included, a welcome sign for this U.S. job creation program.
5. Family-Based Immigration Backlogs
All family-based categories remain backlogged, with limited movement, varying from over twenty years (Philippines, F4 – Brothers and Sisters of Adult U.S. Citizens) to just over two years (All countries, F2A – Spouses and Children of Permanent Residents). We are hopeful that USCIS continues the use of Chart B in October 2018 for family-sponsored filings, opening the door to the possibility of obtaining a “red combo card”.
Special Note: The American Immigration Lawyer Association (AILA) and Invest in the USA (IIUSA) are putting together the first joint EB-5 Industry Forum in Chicago, Illinois from October 29-30, 2018, aimed at providing cutting-edge review and analysis of all aspects of EB-5 direct and regional center investments. You can register to attend here.