On January 29, 2020, U.S. Citizenship and Immigration Services (USCIS) announced changes to the way that EB-5 petitions will be processed. If you are an international investor who is considering or seeking an EB-5 visa, consult first with a Las Vegas immigration attorney.
An EB-5 investor visa provides a path for qualifying international investors to become lawful permanent residents – that is, “green card” holders – by investing at least $900,000 in a U.S.-based business that will employ at least ten U.S. workers.
USCIS previously processed EB-5 visa requests using a “first-in, first-out” method, which meant EB-5 visa petitions were reviewed and decided strictly on the basis of a petition’s filing date. USCIS will now process and approve or deny EB-5 visa petitions on a “visa availability” basis.
How Will The Changes Affect EB-5 Processing?
The EB-5 visa category is allotted 10,000 visas each year. This number includes visa applicants, their spouses, and their dependent children under age 21. USCIS will now prioritize and process EB-5 visa petitions on the basis of whether or not a visa number is available.
This links the processing of an EB-5 visa petition to the investor’s nation of birth. No single nation’s investors may acquire more than seven percent of the available EB-5 visas for any single fiscal year.
After a fiscal year’s EB-5 visa quota has been met, the Department of State establishes a “waiting line” that decides the order in which visas will be issued to the remaining applicants. This places the applicant in “visa retrogression.”
Which Nations’ Investors Will Be Affected By These Changes?
Presently, only investors from mainland China, India, and Vietnam are being placed in visa retrogression, as the number of applicants from those nations has, for the last few years, regularly exceeded seven percent of the available EB-5 visas.
An investor’s “place in the line” will depend on that investor’s assigned priority date, which is the date that the petition was submitted and received. Investors can find their priority date on the I-526 receipt notice that was returned to them by USCIS.
International investors and their families cannot receive a conditional two-year green card before their priority date is “current.”
Every month, the Department of State publishes the “current” priority dates on the department’s Visa Bulletin. When an investor’s priority date is listed as current, an investor, spouse, and their dependent children may then receive their conditional two-year green cards.
How Will These Changes Affect Investors From India, China, And Vietnam?
Investors married to a spouse who was not born in mainland China, India, or Vietnam are not currently subject to visa retrogression because they are “cross-chargeable” to the spouse’s nation of birth for EB-5 purposes.
The new policy takes effect in March 2020. Investors from mainland China, India, and Vietnam who have priority dates that aren’t listed as current in the Visa Bulletin may expect longer waits for EB-5 visa approval.
International investors with a priority date that is “current” and those who aren’t from Vietnam, mainland China, or India will still be processed on a first-in, first-out basis using the I-526 date of receipt. As of early 2020, the processing time for EB-5 visa petitions is 32 to 49 months.
What Do These Changes Mean For The Families Of Investors?
Investors from mainland China, India, and Vietnam may be concerned about their children reaching age 21 and “aging out” prior to acquiring a green card. The new policy protects many young people from aging out and lets them continue the processing with an investor parent.
Congress recognized that too many children were aging out due to processing backlogs, so it passed the Child Status Protection Act (CSPA) in 2002. Whether or not CSPA protection applies to a particular child is determined when the priority date of the investor parent becomes current.
When a parent’s priority date becomes current, the number of days that the petition was pending is subtracted from the child’s age. If the final number is below 21 years old, CSPA protection applies, giving the child a year to obtain an EB-5 visa.
Not every child is protected against “aging out,” but the processing changes mean that more children will be allowed to continue through EB-5 processing with their investor parent. In the past, USCIS has not held back EB-5 visa petitions to protect children against aging out.
When Will Happen When The Changes Take Effect?
The new processing procedure for EB-5 visas applies to petitions that will be pending when the changes take effect on March 31, 2020.
Currently, the EB-5 filing fee is $3,675. An investor’s financial and personal details will be scrutinized closely. The investor must be able to show that his or her investment is being made with funds that were acquired legally.
EB-5 visa holders receive conditional permanent resident status for two years. At that time, provided that all of the other immigration requirements are satisfied, EB-5 visa holders may apply for full lawful permanent resident status.
What Else Should Investors Know About The EB-5 Visa Program?
EB-5 visa holders, their spouses, and their dependent children below age 21 are eligible for naturalized U.S. citizenship five years after the initial approval of the EB-5 visa. Investments made through the EB-5 Investor Visa Program benefit everyone. The EB-5 gives:
- international investors the opportunity to reside in the U.S. and pursue the American Dream
- developers and business owners the funds they need for new projects – sometimes returning prosperity to depressed communities and businesses
- U.S.-based workers new jobs and fresh opportunities
Everyone benefits from the EB-5 Investor Visa Program.
Opportunities Are Abundant, But You’ll Need An Attorney’s Help
Investors should have the guidance of a Las Vegas immigration attorney from the very beginning of the EB-5 process. Any mistakes or misunderstandings could delay the approval of your visa.
In 2020, impressive investment opportunities are abundant in every part of the United States. As mentioned previously, the wait time for an EB-5 visa can be quite lengthy, so investors will need to begin the process as early as possible.
Immigration law can be complicated. So can investing in a U.S. business. A good immigration attorney in the United States will be able to address your concerns, answer your legal questions, and even help you find an investment opportunity in the United States that is just right for you.
You can make the call right now from anywhere in the world and arrange to speak with an immigration lawyer in the United States. If you’ve ever thought about investing in this country, the right time is now.