By: Bernard Wolfsdorf and Joseph Barnett
The U.S. Department of State (“DOS”) has just published the Visa Bulletin for January 2018, and the Final Action Dates for the EB-5 $500,000 (I5) and $1 million (R5) investment in the EB-5 Regional Center categories have been listed as “Unavailable”. The Visa Bulletin states:
The continuing resolution signed on December 7, 2017 extended this immigrant investor pilot program until December 22, 2017. The I5 and R5 visas may be issued until close of business on December 22, 2017, 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 December 22, 2017.
The final action dates for the I5 and R5 categories have been listed as “Unavailable” for January. If there is legislative action extending them for FY-2018, the final action dates would immediately become “Current” for January for all countries except China-mainland born I5 and R5 which would be subject to a July 22, 2014 final action date.
So, in a nutshell, no EB-5 regional center visas can be issued in January 2018, unless Congress extends the EB-5 Regional Center program beyond. In some ways it is helpful that the regional center program is linked to many other key programs that require re-authorization. Presently, the expectation is that Congress will pass another short term Continuing Resolution to January 19, 2018. Thereafter, there are several possibilities as to what may occur, but the two most likely are yet another short-term extension to April 2018, or possibly to September 2018. If EB-5 reform legislation is not enacted before April 2018, it is likely that DHS’ EB-5 regulations (including a minimum investment amount increase, TEA changes, and other “integrity” reforms), currently scheduled to be finalized by April 2018, will be implemented. The USCIS’ new director L. Francis Cissna has made it clear that he favors regulations over policy memoranda, and we can likely expect to see him support regulatory changes.
On a related issue, DOS also recently announced that, as of November 1, 2017, there are 30,259 EB-5 cases registered at the National Visa Center (NVC) processing center, waiting for final interviews, and in the case of mainland Chinese EB-5 applicants, waiting for their priority dates to become current. This is an increase of nearly 23% from last year. Note, when trying to calculate the waiting line for Chinese applicants with pending Form I-526s, merely adding the number of pending, initial EB-5 applications to the number of people in line at the National Visa Center and with pending adjustment applications, is not likely to provide a precise answer to determine the mainland Chinese waiting line. Why? Neither USCIS nor NVC factor in the attrition rate. There are simply too many variables. For this reason, the State Department tends to provide a best case and worst-case scenario in terms of wait times. Also because of these variables, the DOS is reluctant to make long term predictions where there is no “clear visibility on number usage”. Is there an issue or problem, yes? How bad is the problem, it is serious? However, there are several solutions. At this time however, it is important to understand the attrition rate will be impacted by several variables. There are visa petition denials, and final immigrant visa interview denials, and there are people that drop out, and there are people that get divorced. There are even people who die. Hence, our four Ds: Denial, dropout, divorce and death all contribute to attrition.
While we have been hoping congress will correct the program to 10,000 investors, not 3,000 investors and their families. Unfortunately, that doesn’t seem likely at this time absent successful litigation.
There is however some potential good news for mainland Chinese investors in the EB-5 waiting line. A new bill has been introduced in the U.S. House of Representatives called the Fairness for High-Skilled Immigrants Act of 2017 which would amend the Immigration and Nationality Act to: (1) eliminate the per country numerical limitation for employment-based immigrants and (2) modify the Chinese Student Protection Act of 1992 to eliminate the provision requiring the reduction of annual Chinese immigrant visas to offset status adjustments under such Act. This immigration bill has significant congressional support, with 301 current co-sponsors (nearly 70% of all representatives in the House of Representatives). Moreover, Senator Grassley and Representative Goodlatte, the two most powerful politicians in the Senate and House handling this immigration issue, have indicated they support the “Hatch” proposal, which, in general, endorses H.R. 392. If enacted, Chinese EB-5 investors with priority dates in 2014 and 2015 would be able to obtain an immigrant visa much more quickly, as one’s place in the waiting line will no longer dependent on the nation of chargeability.
Though there is still too much uncertainly to determine what will occur, it appears there is hope that meaningful EB-5 reform will occur in the coming year.