EB-5 Visa Availability

As you may know, in August 2014 the Department of State (DOS) declared EB-5 visas unavailable for Chinese nationals for the remainder of FY 2014 (which ended on September 30th). DOS made the announcement because of the EB-5 program’s enormous rise in popularity, particularly in China, resulted in an oversubscription of the 10,000 annual allocated visas for the first time. With the beginning of FY 2015 on October 1st, the visa category once again became current for Chinese nationals (for now). But the revelation that the EB-5 program for the first time met its 10,000 annual allotment was significant, and it portends both continued issues and opportunities in the program for FY 2015 and years to come.

While the visa category is now current due to the beginning of the new fiscal year, it is estimated that sometime in mid-2015, DOS will once again declare the program oversubscribed and will establish a cut-off date for Chinese petitions (petitions approved by USCIS after the cut-off date will not be processed by DOS for a visa until the cut-off date is moved forward). Several commentators also predict that once a cut-off date is established, the continued increase in petitions might require the visa category to “retrogress,” which means that the cut-off date would actually move back in time instead of advancing.

So what does this all mean for non-Chinese investors? In short: slightly longer processing times. Right now, the I-526 processing time is 13.8 months. USCIS has pledged to reduce that wait time with the opening of its new Immigrant Investor Program Office in Washington, D.C. Currently, however, there are approximately 15,000 petitions pending with USCIS. The implication for non-Chinese investors is that, most likely, USCIS will continue to process I-526 petitions on a “first-come, first-serve,” basis, even after the mid-2015 declaration of oversubscription and establishment of a cut-off date. Thus, unless USCIS decides differently, Chinese petitions will continue to be processed and put into a “pending” visa category until DOS declares more visas are available for Chinese nationals. Wait times for non-Chinese nationals to have their I-526 petitions processed will thus be impacted by the continued processing of Chinese petitions for which there are no available petitions.

Many stakeholders are hopeful that USCIS will consider the unavailability of visas for Chinese petitioners when allocating adjudication resources for the program, especially since the number of pending petitions is so high. A decision to first process petitions for which there are available visas would greatly decrease the processing times for non-Chinese investors and would increase the confidence in underdeveloped EB-5 markets around the world.

Regardless, the enormous popularity of the program—while adding to wait times—is nonetheless a good sign for future investors from all countries. The EB-5 program is temporarily authorized by Congress and must be renewed at the end of 2015. Clearly the program has wide popularity both domestically for its economic benefits and internationally for its advantages to investors. FY 2015 will be a very interesting year for EB-5 and GMLG is your source for the latest and most important information affecting the EB5 program.