On August 8, 2016, the U.S. Department of State (“DOS”) released the September 2016 Visa Bulletin, and the Chart A – Application Final Action Dates for Chinese EB-5 visa applicants remains frozen at February 15, 2014 for an unprecedented fourth straight month.
The September 2016 Visa Bulletin also continues the cut-off date of January 1, 2010 for EB-1 Chinese and Indian visa applicants, although this is expected to be current again in October 2016. The cut-off date of February 1, 2014 for EB-2 visa applicants from all other countries should also recover in October 2016, the beginning of the 2017 Fiscal Year (“FY”). Here are some observations:
- Cut-Offs Expected at End of Fiscal Year. The backlogged EB-5, EB-1, and EB-2 priority dates were expected. It is normal to establish cut-off dates at the end of each FY (September 30) to accommodate the annual quota. However, it is expected that EB-1 will be current for India and China in October, and even EB-5 should move forward slowly when the new supply of immigrant visas becomes available. However, since the EB-5 Regional Center Program is still scheduled to sunset on September 30, 2016, the cut-off dates for the I5 and R5 visas may be listed as “unavailable” for October 2016, unless Congress extends the EB-5 Regional Center Program before the October 2016 Visa Bulletin is published during the second week of September. There is no certainty when legislative action to extend the EB-5 Regional Center Program will occur, although we are hearing there will be either a 60 day, or maybe even a one-year, extension. Charles Oppenheim, Chief of the Visa Control and Reporting Division, U.S. Department of State, indicated on August 12, 2016 that he is unable to make any predictions at this time as to where EB-5 China cut-off dates will fall in the next FY. He expects to have better information by late September to mid-October 2016.
- Chart B – Date for Filing Remains Closed. USCIS announced on August 10, 2016 that it would not open Chart B – Date for Filing for September 2016, which would allow certain persons to file Form I-485 Application for Adjustment of Status (“Form I-485”) if in the U.S., in lawful status, and otherwise eligible to adjust. The filing of a Form I-485 may protect an EB-5 child beneficiary in the U.S. from “aging-out.” Although there is no certainty USCIS will open Chart B for filing adjustments in October and/or November 2016, as it did in 2015, we expect an announcement from USCIS regarding the October Visa Bulletin on or about September 12, 2016. This will be the last chance for some to file I-485 adjustment applications and may present the only opportunity for some derivative children to have any chance to avoid “aging out.” Oppenheim indicated that he has not yet met with the USCIS Ombudsman’s Office and thus has no predictions regarding the use of Chart B in the future.
- EB-5 Adjustment of Status Filings in Fiscal Year 2016. In October 2015 and November 2015, the beginning of FY 2016, USCIS allowed Chart B or Dates for Filing (DFF) to be used to file adjustment of status applications in furtherance of President Obama’s initiative Modernizing and Streamlining Our Legal Immigration System for the 21st Century.859 people, of whom 844 were individuals born in China-Mainland, filed to adjust status under the EB-5 category when USCIS allowed persons to file Form I-485s based on Chart B, which currently has a priority date of May 1, 2015. This represents about 280 approved Form I-526 petitions (each approved I-526 petition uses, on average, 3 immigrant visas due to the inclusion of family members in the total EB-5 visa allocation). Allowing the use of Chart B could assist many with potential “age-out” children to be included, as the USCIS position seems to be that filing a Form I-485 will “freeze” the child’s CSPA age. Less than 10% of EB-5 cases file for adjustment of status, so demand is not ordinarily too high. The chart below shows the number of pending adjustment of status applications (117,331) compared to the NVC pending applications for new arrivals (100,747) as of April 2016.
The chart below shows the number of pending visa applications for adjustments of status from select countries for each of the five employment-based visa categories.
- Age-Out Concerns. If USCIS does open Chart B to allow for Form I-485 filings, there is still a critical, unanswered question: Is a child’s age “frozen” under the Child Status Protection Act (“CSPA”) if the child files a Form I-485, Application to Register Permanent Residence or Adjust Status using Chart B – Date for Filing? USCIS has sought to clarify that a Form I-485 adjustment of status filing under Chart B meets the “sought to acquire” requirement of the CSPA to provide relief when delays in processing visa petitions or applications cause a beneficiary to lose eligibility for classification as a child solely due to reaching 21 years of age. USCIS indicated its April 15, 2015 Final Policy Memo that the filing of a Form I-485 does meet the “sought to acquire” requirement. We believe that any other interpretation regarding the use of Chart B would be inconsistent with the November 20, 2014 U.S. Department of Homeland Security (“DHS”) direction to USCIS to work with the U.S. Department of State (“DOS”) to improve the Visa Bulletin system, as part of the Obama Administration’s goal in Modernizing and Streamlining Our Legal Immigration System for the 21st Century to increase predictability in permanent residency system and ensure all allocated visas are used.
- Preconceived Immigrant Intent. Foreign nationals entering on temporary visas, including B-1 or B-2 visitor visas, who file an adjustment of status application within 30 days of entry are presumed to have entered with a pre-conceived intent to adjust their status, which is prohibited. Entering with intent to file an adjustment of status can be deemed visa fraud which is a permanent bar to all immigration benefits. Foreign nationals filing 30 days after entry but less than 60 days have a rebuttable presumption of immigrant intent, and those filing more than 60 days after entry, have a presumption that they did not have immigrant intent at the time of entering the U.S. Clearly someone who entered before they knew it was even possible to adjust status is in a better position regarding intent. Here it could be argued that those who entered before September 10, 2016, maybe did not have the intent to adjust status because it was not legally possible to do so at that time. For persons entering the U.S. on H or L visas, there is no issue filing an application for adjustment of status immediately after entry.
- Work and Travel Authorization with Adjustment of Status Filings. Those persons with approved EB-5 Form I-526 petitions who are eligible to adjust status under Chart B, Date for Filing (DFF) will also be eligible for work and travel authorization. Generally, these additional immigration benefits, which are documented on a “Combo Card” or “Red Card,” are issued 3-4 months after the filing. They are valid for one year, and can be extended throughout the adjustment of status adjudication. The “Red Card” looks similar to Employment Authorization Card but will include text that reads “Serves as I-512 Advance Parole” or “Valid for Re-Entry to U.S.”
Whether or not USCIS opens Chart B for Form I-485 filings in accordance with President Obama’s visa modernization policy is the critical issue for Chinese nationals waiting in an ever-increasing waiting line. If USCIS does open the Chart B for October and November 2016, there will be a huge benefit for those waiting in the lengthy waiting line, and for some who seek to freeze their derivative children’s age under Chart B, this may be the only chance to save certain EB-5 derivative children from aging out.
If you have any questions about this important issue or want to schedule a professional consultation, please contact a Wolfsdorf Rosenthal LLP attorney to discuss your case.
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