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This week, Wolfsdorf Rosenthal LLP Managing Partner, Bernard Wolfsdorf, led a panel at the AILA/IIUSA EB-5 Forum in Chicago, Illinois with Mr. Charles Oppenheim, Chief, Immigrant Visa Control & Reporting, U.S. Department of State (“DOS”). This panel presented the latest EB-5 data and estimates for future processing.
1. Predictions for Future Final Action Dates
Mr. Oppenheim predicted the following Final Action Dates for EB-5. It is important to note in the past, Mr. Oppenheim has had to recalibrate estimates later in the year based on unforeseen variables impacting visa demand or usage:
o December 2018 Visa Bulletin – August 22, 2014
o Best Case Scenario for September 2019 – October 22, 2014
o Worst Case Scenario for September 2019 – October 8, 2014
o Slow movement because of large groupings of applicant demand in weekly groupings surrounding Regional Center program sunsets
o December 2018 Visa Bulletin – May 1, 2016
o A Final Action Date (Chart A) of September 2016 is likely to be reached
o May or June of 2019, is when the Final Action Date will begin to track with China
o October 2019 Visa Bulletin (beginning of FY 2020) – Significant movement forward, consistent with that of October 2018. This pattern will recur until earlier filed backlogged Chinese cases are cleared
o Imposition of a Final Action Date no later than July 2019, possibly earlier, depending on how quickly USCIS adjudicates pending I-526 petitions.
o Once a Final Action Date is established, it will begin to track with China
o October 2019 Visa Bulletin (beginning of FY 2020) – Significant movement forward, likely to 2017. This pattern will recur until earlier filed backlogged Chinese cases are cleared
All Other Countries
o Will remain current for the foreseeable future
2. Potential “Rough” Visa Wait Time for EB-5 Investors if I-526 Filed October 30, 2018
The wait time estimate is the number of years between the time when an I-526 petition was filed and the time when an EB-5 visa is available, including the processing time for adjudicating the I-526 petition times. USCIS petition processing times vary from a few months to a few years.
• China (presently 3,800 visas per year): about 14 years
• Vietnam (700 visas per year): about 7.2 years
• India (700 visas per year): about 5.7 years
• South Korea (700 visas per year): about 2.2 years
• Taiwan (700 visas per year): about 1.7 years
• Brazil (700 visas per year): about 1.5 years
Mr. Oppenheim stated that, except for China, these estimates may be considered the “worst case” scenario. Furthermore, because the wait time estimates above include the time an applicant is already waiting for his or her I-526 approval, any additional wait caused by a per country backlog may be negligible. For example, if the I-526 processing time is one year, an applicant chargeable to Brazil would only have an additional wait of six months.
These estimates are very “rough” and cannot encompass all the variables, such as dissipation from petition revocations, deaths, age outs, withdrawals, and many other factors; nor does it include possible increases from family “acquired” before visa issuance, possible legislative, regulatory, judicial or other governmental action that might increase available numbers. But, they do provide a glimpse into the issue of demand versus the annual per-country limit impacting visa availability.
3. Worldwide Use
The wait time estimates above reflect a changing demographic among EB-5 applicants. A total of 9,602 EB-5 numbers were used in Fiscal Year (“FY”) 2018, and for first time in recent history, fewer EB-5 numbers were used by China-mainland nationals (4,642) than those from the rest of the world (4,960). This is a dramatic change from recent history, where over 7,500 EB-5 numbers were allocated to China-mainland nationals each year.