EB-5 Update and Things I Learned from Charlie Oppenheim During the IIUSA EB-5 Washington, D.C. Conference

Bernard P. Wolfsdorf, Esq. and Joseph Barnett, Esq.

Last week, the Association to Invest in the USA (“IIUSA”), the national trade group for the EB-5 Regional Center Program, held its annual EB-5 Advocacy Conference in Washington D.C.  It was an exciting time to be in the nation’s capital when so much is at stake for the EB-5 Program, and as we previously blogged, the U.S. Congress passed a one-week stopgap for the EB-5 Regional Center Program during my time there.  Today, there is talk the U.S. Congress will once again extend the EB-5 Program, without change, to September 30, 2017.  However, we expect to see a new law reforming the EB-5 Program before this date, and before the proposed regulation raising the minimum investment to $1.35 million takes effect.

During the conference, I moderated a panel featuring Mr. Charlie Oppenheim, Chief, Immigrant Visa Control and Reporting, Department of State (“DOS”).

Here are some new developments:

  1. Expect Slow Movement of Chinese EB-5 Cut-Off Date Until Congress Increases the Quota. The May 2017 Visa Bulletin lists China-mainland born cut-off date (called the Final Action Date) as June 1, 2014, creating at 35-month waiting line for persons chargeable to the China quota.  The cut-off date for China-mainland EB-5 investors will advance only one week in June 2017 to June 8, 2014.  By the end of Fiscal Year 2017, that is September 2017, the best possible cut-off date scenario is June 22, 2014, and the worst is July 1, 2014. This slow pace will continue in Fiscal Year 2018 where the best possible cut-off date scenario is September 15, 2014, and the worst is October 8, 2014.  The rest of the world remains current through FY 2018, although there is a possibility that Vietnam could become subject to a cut-off date in the 3rd (April-June) or 4th Quarter (July-August) of FY 2019 or possibly in FY 2020. If a cut-off date is established late FY 2019, it is possibly Vietnam could become unavailable as there will be many Chinese cases with earlier priority dates in 2015. However, when the new quota arrives October 1, 2019 (FY 2020) a Vietnamese cut-off date may be established. Note: These are estimates and in the past, it has been necessary to adjust these “guestimates”.

 

  1. Chart B – Date for Filing Applications – Unlikely to Be Used by USCIS for EB-5 Adjustment Filings. It appears USCIS is unlikely to use Chart B – Date for Filing Applications (currently set at September 1, 2014 for China-mainland born EB-5 investors) from the Visa Bulletin for EB-5 investors to file adjustment of status applications.  It appears that the cases submitted prior to September 2014 will be sufficient to use up the available EB-5 visa numbers.

 

  1. Top Issuing Countries in EB-5. While China remains the top country for EB-5 by a long shot, FY 2016 showed a second straight year of a reduced percentage of EB-5 investors from China with the percentage going down to 75.6% as applications from the Rest of the World (ROW) surge.  We may continue to see this trend if the Chinese EB-5 waiting line increases without additional allocations of EB-5 visas.  Charlie also indicated that for FY 2017, to date, approximately 80% of EB-5 visas have been issued to China-mainland investors.

TOP EB-5 ISSUING COUNTRIES IN FY 2013- FY 2016

Country

(based on FY 2016 ranking)

FY 2013 FY 2014 FY 2015 FY 2016
China-mainland born 80.5% 85.4% 83.5% 75.6%
Vietnam 0.5% 1.1% 2.9% 3.4%
Korea, South 4.3% 2.1% 1.2% 2.6%
China-Taiwan born 1.6% 1.2% 1.4% 2.0%
Brazil 0.3% 0.3% 0.4% 1.5%
India 1.0% 0.9% 1.1% 1.5%
Venezuela 1.1% 0.9% 0.7% 1.1%
Russia 0.8% 0.9% 0.9% 1.0%
All Others 9.9% 7.2% 7.9% 11.3%
  1. Increased Demand in Direct EB-5 Opportunities. Another interesting trend was the increase in EB-5 visas granted based on “direct” EB-5 investments.  In FY 2015, the total number of EB-5 visas for this category totaled 156; in FY 2016, it ballooned to 846, a 442% increase.  Interestingly, almost one third of EB-5 visas based on “direct” EB-5 projects were not in a Targeted Employment Area.

WORLDWIDE EB-5 TOTALS FY 2013-FY 2016

Category FY 2013 >FY 2014 FY 2015 FY 2016
C5($1m-Direct) 243 161 64 273
T5($500-Direct) 227 155 92 573
I5($500-RC) 8,087 10,375 9,597 9,088
R5($1m-RC) 7 1 11 13
Total 8,564 10,692 9,764 9,947
  1. From USCIS – IPO Regarding Regional Center Geographic Area Amendments and Form I-526 Petition Eligibility. As discussed in a previous blog, USCIS changed the deadline for I-924 filings as it relates to expanding a Regional Center’s geographic territory in accordance with the May 30, 2013 EB-5 Policy Memorandum.  In updated remarks USCIS stated that it will continue to adjudicate Form I-526 petitions filed after February 22, 2017 under the guidance reflected in the May 30, 2013 memo. This is for cases where a Regional Center’s geographic area expansion request was submitted either through a Form I-924 amendment or a Form I-526 petition filed prior to February 22, 2017.   This provides partial release for those relying on the May 30, 2013 generous policy regarding expanding a Regional Center’s geographic territory.

 

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