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  • Article: EB-5 Practice Advisory Concerning The Establishment Of A China EB-5 Cut-Off Date. By Bernard Wolfsdorf, Esq.

    EB-5 Practice Advisory Concerning The Establishment Of A China EB-5 Cut-Off Date

    by


    Yesterday, I presented the panel discussion at the IIUSA meeting in Washington, D.C. with Charlie Oppenheim, the Chief of the Visa Control and Reporting Division at the U.S. Department of State. He announced the establishment of China EB-5 Cut-off date of May 1, 2013. This China cut-off date will start on May 1, 2015. Therefore, there is a very short window of opportunity until April 30, 2015 to take the necessary steps required by the Child Status Protection Act (CSPA) to “freeze” the derivative child’s age.

    As a result of the cut-off date announcement, only I-526 petitions filed before May 1, 2013 can now be scheduled for final interview in Guangzhou, or be allowed to file Form I-485 to adjust status in the U.S.

    This Practice Advisory Deals with CSPA Action Items for Chinese Age-Out Cases Only.

    Since there are only a few days left before the cut-off date starts on May 1, 2015, the Wolfsdorf Rosenthal LLP office is providing the best possible information based on instructions sent to us by the Chief of the National Visa Center (NVC) last week in response to the questions I asked on March 6, 2015.  The State Department has now published official answers regarding the requirements to seek to acquire permanent residence.

    Congress has allocated approximately 10,000 visa numbers for EB-5 investors and family members.  This quota was established in 1990 and has never been changed.  Until recently, this 10,000 allocation has been sufficient to meet annual demand.  The consequences of a China cut-off date include the possible age-out of children, and complex issues regarding job creation requirements and return of capital which are not addressed here.

    The annual limits control how many green cards may be issued each Fiscal Year (October 1 through September 30) in all visa categories. If these limits are exceeded in a particular category for a particular nationality, a waiting line is created and applicants are placed on the list according to their date of filing. This date is called the “priority date.”

    Applicants born in China may be cross-chargeable by marriage to another “Foreign State” (e.g., Hong Kong, Macau, Canada, France, etc.), in which case they have no problem with the quota.

    The State Department has announced a China cut-off date that starts on May 1, 2015. This is because demand for EB-5 visas has increased by 700% since 2007 and this demand now requires the establishment of a China cut-off date on May 1 2015.

    Chinese visa applicants, who filed their I-526 petition before May 1, 2013 and therefore have a priority date earlier than the cut-off date, may still move forward with the permanent resident process; others will need to wait until their priority date is current.

    On Monday, April 13, 2015, Charlie Oppenheim announced a cut-off date of May 1, 2013, which is published in the official May Visa Bulletin. The waiting line for Chinese born EB-5 applicants will start at approximately 2 years.  Every month the visa bulletin is published and Mr. Oppenheim stated that he may be able move the May 1, 2013 date forward incrementally over the next few months depending on how many new I-526 petitions are approved by USCIS.

    My concern is that, once the China EB-5 cut-off date is established, the Department of State may have to retrogress that cut-off date even further. Last year about 5,000 petitions were approved, and the 10,000 EB-5 numbers were all used up. This year there are over 13,000 petitions pending, and therefore, as many as 10,000 I-526 petitions could be approved in the next few months. Since each petition needs an average of 2½ visas, the current pending cases alone could require 2½ years’ worth of the annual EB-5 quota. It is therefore possible the waiting line could increase to 3 years or more.

    The good news is that in October 2015, with the beginning of the new immigration Fiscal Year, the China EB-5 waiting line should be about 2 years as an additional 10,000 new visas will become available.

    Chinese applicants who wish to immigrate under the EB-5 program should file their cases immediately because the waiting line may increase to 3 years or longer in 2016.

    Action Items for Chinese Age-Out Cases

    If the derivative child was under 21 years old when the  I-526 petition was filed, and the child is under 21 years old at the time of approval using the CSPA calculation, the child has 12 months after the visa becomes available to “seek to acquire” lawful permanent residence status. If the applicant “seeks to acquire” lawful permanent residence (LPR) status within 12 months of the visa becoming available, the applicant will lock in his or her CSPA age-out protection.  See USCIS’s Adjudicator’s Field Manual, section 21.2(e)(1)(ii)(E).

    If you haven’t yet filed the EB-5 petition, and there is a derivative child over 18 years old, consider filing with the child as the principal applicant. If your petition is approved and child beneficiary is still under 21 years old, based on the Child Status Protection Act (CSPA) you need to take steps to “lock-in” the child’s age by filing Form DS 260 and paying the State Department fee bill, or, by filing an I-485 adjustment of status application, while the priority date is current. Another alternative is to file Form I-824. Note: Paying the Department of State visa fee alone will protect the derivative child beneficiary.

    The best option if the applicant is the principal beneficiary and is in the U.S. with a valid F-1 student visa status, or other work visa status, is for the applicant to apply to adjust status on Form I-485. This will freeze the child’s age permanently. This can only be done if the adjustment application is received before April 30, 2015, or if the I-526 filing date (Priority Date) is before May 1, 2013.

    If the applicant is not in the U.S. in valid status, the second best option is to file form DS 260 and pay the fee bill. Since the DS 260 is an electronic form, you must have NVC case number to file the DS 260. Unfortunately it can take many weeks from the approval of the I-526 petition to receive an NVC case number.

    Fortunately the State Department has indicated that payment of the visa fee alone is sufficient to lock in the child’s age.

    Another option if you don’t have the NVC case number after the approval of the I-526 petition, is to file Form DS 230, with basic family documents like birth certificates and marriage certificates, and pay the fee to SEEK TO ACQUIRE permanent residence.

    Note, the Department of State appears to want the fee bill paid and it is not clear whether payment of the immigrant visa fee via cashier’s check sent directly to the NVC alone, prior to issuance of the fee bill, will provide adequate CSPA protection.  For this reason, we recommend that derivative child age-outs also file Form I-824 with the $405 filing fee to USCIS to “lock-in” the child’s age under 21 years.

    Unless the child’s age is frozen by filing: 1) the I-485 + fee, or 2) the DS 260 + fee, or 3) the DS 230 + fee, or 4) payment of the visa fees, or 5) the I-824 + payment of USCIS fee, the child will continue to age.

    When filing new cases, it is important to know if a child should be included with the family, when immigrating, or should file separately.

    Summary

    • An alien seeking classification as a child who has a “CSPA age” under 21, must have sought to acquire lawful permanent residence within one year of the visa becoming available.
    • An alien may satisfy the sought to acquire requirement by:
    • filing Form I-485;
    • submitting Form DS 260 to Department of State (Note: the consular process is different and “sought to acquire” may be satisfied with payment of the visa application fees rather than submission of the actual form); or, (Emphasis added)
    • having a Form I-824 filed on the alien’s behalf.
    • The best option is to file form I-485, however to do so the applicant must be eligible under section 245 of the Immigration & Nationality Act.

    Email sent from Department of State NVC Director to Attorney Bernard Wolfsdorf on Thursday, April 09, 2015 1:51 PM.


    Form I-485 can only be filed if in the U.S. in valid nonimmigrant status, and eligible to adjust with no status violations, unless exceptions such as Section 245(i) apply. Form DS-260 is an electronic form that can only be filed with an NVC Case Number. If none, file form DS-230. The one year requirement generally means that the applicant must have submitted the completed Form DS-260 within one year of a visa becoming available. (Note that the American consul can also accept submission of Form DS-230, the form that preceded Form DS-260). 9 FAM 42.42 N12.6 Sought to Acquire LPR Status Provision. Therefore if DS-260 can’t be filed, it should be possible to file DS-230.

    However, the Department of State has indicated that payment of visa fees alone, without submission of the forms, is adequate to provide CSPA age-out protection.

    To pay the fees online, one must have been issued an NVC Case Number. If unable to pay the visa fees online, there is an alternate pay-by-mail method using a cashier’s check or money order.

    To be safe, the Form I-824 should also be filed before May 1, unless the priority date is current, meaning the I-526 petition was filed before May 1, 2013. The Form I-824, Application for Action on an Approved Application or Petition is filed with USCIS and requires a filing fee of $405.

    CSPA Steps-Which is the Best Option to Choose?

    Freezing the child derivatives age is so important, one wants to be 100% sure with this analysis:

    1. If you can file an I-485, then do so.
    2. If you have a fee bill from NVC, pay it online and submit Forms DS 260. (Note again, the Dept. of State has said one can pay the fee only to freeze the child’s age). If the electronic DS 260 is not doable, file the DS 230 manual forms.
    3. Pay the fee bill, if no fee bill, pay by other methods.
    4. File I-824 with fee on behalf of child. In those cases where there is no fee bill, I will be filing the form I-824 with the fee of $405, and I will also submit the visa fee by cashier’s check to the NVC.


    CONCLUSION: There are 4 options: #3 is easiest; #1 is limited in scope; #2 is best, and #4 is extra assurance.

    Retrogression

    The term retrogression is wrongly used to describe a cut-off date. Here is the real meaning of retrogression.

    • A child derivative applicant has 12 months after the visa comes available to “seek to acquire” lawful permanent residence status.
    • However, if retrogression occurs within the 12 month window, the applicant can still satisfy the “sought to acquire” requirement until the 12 month period expires.
    • In addition, if the applicant did not lock in CSPA’s age-out protection during the first 12 month period in which a retrogression occurred, an applicant would have a second 12 month window to satisfy the “sought to acquire” requirement once the petition becomes current again, although the CSPA age would be calculated using the new availability date (since the date the visa first came available).
    • If the applicant seeks to acquire LPR status within 12 months of the visa coming available, the applicant will lock in his or her CSPA age out protection.  See USCIS’s Adjudicator’s Field Manual, section 21.2(e)(1)(ii)(E).


    Hypothetical Example of Retrogression

    • By way of a hypothetical example, if a petition were approved by USCIS on August 3, 2015, and a cut-off date had been established effective on September 1, 2015, the NVC will send a fee bill to those whose petitions were approved prior to September 1, 2015 to allow the applicant to pay the IV application fee within the 12 month period.  The applicant’s CSPA age would be calculated using August 3, 2015 – the date at which a visa first became available—and the applicant could lock in that CSPA age by seeking to acquire LPR status by August 3, 2016.
    • Should the applicant fail to seek to acquire LPR status within that year and the petition becomes current again on December 1, 2017, the applicant would again have a 12 month period, or until December 1, 2018, in which to satisfy the requirement—assuming that using the visa availability date of December 1, 2017, resulted in a CSPA age under 21.   If the sought to acquire requirement had not been met during the first 12 month period that began August 3, 2015, NVC would send a fee bill once the petition became current again on December 1, 2017, affording the applicant the opportunity to satisfy the requirement within the second one year window of opportunity.
    • The problem here is the “assumption that using the visa availability date of December 1, 2017 will result in a CSPA age under 21” For those who file immediately prior to their 21st birthday, the chances are slim.
    • CSPA only allows deduction of the time the petition was pending, usually about one year. In some case, the petition took 2 years or more, this allows more time to be deducted.


    How to Calculate Whether to Include 18 Year Old Child When Filing the I-526

    For 18 year olds you have 3 years until 21. 18+3=21. Then add about 1 year for I-526 adjudication time=4 years. If I-526 processing time is only ½ year, add only ½ year=3 ½. If the quota is backlogged by less than 4 years when filing, 18 year olds should be safe.  This is because the present estimate is the backlog will start at 2 years, but may increase to 3 years in 2016, and maybe even longer. 3+1= 4-2 OR -3 = should be safe.

    How to Calculate Whether to Include 19 Year Old Child When Filing the I-526

    For 19 year olds you have 2 years until 21. 19+2=21. Then add about 1 year for I-526 adjudication time=3 years. If the quota is backlogged by less than 3 years when filing, 19 year olds should be safe. The present estimate is the backlog will start at 2 years, but may increase to about 3 years in 2016. 2+1= 3-2 = 1 maybe safe [but IF case approved in 6 months only add ½ year, or if waiting line goes to 3 years, 2+1=3-3=0 Therefore not safe.

    How to Calculate Whether to Include 20 Year Old Child When Filing the I-526

    For 20 year olds they have 1 year until 21. 20+1=21. Then add 1 year for I-526 adjudication time=2 years. If the quota is backlogged by less than 2 years when filing, 20 year olds should be safe. The present estimate is the backlog will start at 2 years, but may increase to 3 years in 2016. 1+1= 2-2 = 0. The 20 year old is not safe unless the I-526 adjudication takes at least 2-3 years.

    On November 20, 2014, President Obama announced proposals which, if approved could help EB-5 investors faced with a long waiting line. Also, it is possible Congress may take steps to resolve the potential problems caused by over-demand in the China EB-5 category.

    This post originally appeared on Wolfsdorf Immigration Law Group. Reprinted with permission.


    About The Author

    Tahmina Watson Bernard Wolfsdorf is a recent past President of AILA and Managing Partner of the top-rated Wolfsdorf Rosenthal LLP with offices in Los Angeles and New York. With 21 lawyers and 60 professionals, the firm is known worldwide for its excellence in providing value and top-quality global immigration representation. Wolfsdorf Rosenthal LLP has been described by Chambers USA as "a force to be reckoned with."


    The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.

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