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  • Article: China EB-5 – DHS Requests an Extension of the Program and Plans to Increase the Minimum Investment Amount to $800,000 What Does This Mean for the EB-5 Program? By Bernard Wolfsdorf, Esq.

    China EB-5 – DHS Requests an Extension of the Program and Plans to Increase the Minimum Investment Amount to $800,000 What Does This Mean for the EB-5 Program?

    by


    Starting May, 1, 2015, only Chinese born applicants who filed their adjustment of status before May 1, 2013 can file to adjust status if they are lawfully in the U.S., or proceed to be scheduled for a final interview in Guangzhou. On April 27, 2015, DHS Secretary Johnson requested Congress extend the EB-5 Regional Center Program that expires September 30, 2015. As a result there are many questions that need to be answered.

    1. USCIS will Increase the Minimum Investment Amounts.

    Since the minimum investment amounts have not been adjusted since the program was created 25 years ago, the minimum amounts will be increased both for investments into TEAs and for investments in other areas. That amount presently has the purchasing power of only $275,235. USCIS will exercise its authority to raise the minimum investment by regulation. Adjusted for inflation this amount would now be about $900,000. USCIS is also recommending linking minimum investment thresholds to widely accepted inflation indices. Congressional sources are stating the minimum investment amount will be increased to $800,000 for Targeted Employment Areas (TEA) and $1,800,000 for non-TEA.

    2. How many EB-5 visas are left for Fiscal Year 2015 ending September 30, 2015?

    There are about 2,525 EB-5 visas remaining that will be made available to all countries. It is expected that approximately 1,500 of those numbers will be required for use by countries other than China, who will continue to be processed under “current” status, with the remaining numbers (e.g. 1,000) being made available to China for the period May 1, 2015-September 30, 2015. The Department of State will constantly monitor the situation, and if it ever appears that China number use will jeopardize the “rest of the world” current status, then it may be necessary for the China cut-off date to be retrogressed. If, however, rest of the world applicants will not require the use of the estimated 1,500 plus numbers, they would be available for use by China.   By establishing the May 1, 2013 cut-off for China, it was hoped that the date would adequately control future number use, and avoid any need to retrogress that date prior to the end of the Fiscal Year on September 30, 2015. However, it is possible that it may be necessary to retrogress China EB-5 further to keep visa issuance within the annual limit. On October 1, 2015, approximately 10,000 new visas will become available for Fiscal Year 2016 and it is expected that the cut-off date will remain about 2 years prior to the actual calendar date. Thus far, it appears the establishment of a Chinese cut-off date to stabilize number use seems to be working and things look fine for June. Thank you to Mr. Charles Oppenheim, Chief of the Visa Control and Reporting Division, U.S. Department of State for this information.

    3. How is this calculated?

    A total of 10,224 visas are available in the EB-5 visa category for Fiscal Year 2015, of which 7,699 have already been used. The average processing rate has been at about 1,100 per month. To keep EB-5 usage within the annual limit, the Department of State will allocate the remaining numbers first to all countries except China. The remaining numbers can then, and only then, be made available to China. Once these 2,525 visas are made available to rest of the world applicants first, the unused numbers will be allocated to Chinese born applicants with current priority dates, presently those who filed I-526 petitions before May 1, 2013. It is unknown how much the Chinese priority date will advance or retrogress before the end of Fiscal Year 2015 on September 30, 2015.

    4. Which countries used these 7,699 visas?

    China-mainland born has used 6,819 or 88.56%; Vietnam is in 2nd place with 244, Taiwan is in 3rd place with 83, India is in 4th place with 58, and South Korea is in 5th place with 54. [Writer’s note: it is interesting that the top 5 investor countries are all from Asia. The entire rest of the world comprises about 11.5% of total usage.] Thank you to Charles Oppenheim, Chief of the Visa Control and Reporting Division, U.S. Department of State for the numerical information.

    5. Now that we have a China Cutoff date of May 1, 2013, what will happen in mid-May 2015? Will the numbers retrogress to April 15, 2013, stay the same at May 1, 2013, or advance to May 15, 2013, or even June 2013?

    This depends upon demand from rest of the world applicants and we have to wait until about May 10, 2015 when the June 2015 Visa Bulletin is released to know.

    6. What does this mean for Chinese EB-5 applicants in the U.S. with priority dates at, or after May 1, 2013?

    They have to wait until their priority dates are current. If they have, or can maintain valid nonimmigrant status, they may remain in the U.S., until their priority dates become current.

    7. What does this mean for Chinese EB-5 applicants waiting abroad with priority dates at, or after May 1, 2013?

    They have to wait until their priority dates are current to be scheduled for final interviews.  If they have a dual intent visa such as an L-1 or H-1B, they can wait inside the U.S.  Applicants may possibly apply for an F-1 student visa if they can show intent to return home and will not file an application to adjust status.

    8. I was able to file my adjustment of status application as I was in the U.S. lawfully and I’m now in the waiting line with an employment card and advance parole. Now I want to marry my Chinese born boyfriend, or girlfriend, can I include him or her in my adjustment application?

    No, you can marry your boyfriend, or girlfriend now, but he or she cannot file to adjust status until your priority date is current, unless he or she is born in a country other than China. Therefore it’s important to strategize carefully to ensure your newly acquired spouse can lawfully maintain status, until your priority date becomes current, at which time you can file a “follow-to-join” derivative application. If USCIS approves the adjustment before the marriage, your spouse will be an “after-acquired” spouse and he or she will have to wait another 2-3 years, or longer as the Family F2A spousal immigrant category is backlogged.

    9. My I-526 petition got approved after May 1, 2015 but my I-526 was filed after April 30, 2013 so my priority date is not current and I have a child under the age of 21. Will my child be eligible to obtain a green card with me as my derivative beneficiary?

    Maybe, it depends on how old the child was at the time of the filing, and how long the I-526 took to be approved. The law requires you to seek to acquire permanent residence for the child within one year of visa availability, but if you don’t have a full 12 months because of visa retrogression and a visa number is not currently available, you get another 12 months once a visa number becomes available.  However, at that time, the child’s CSPA age is recalculated. Some derivative child beneficiaries who were over 20 at the time of filing may age-out, most 19 year olds have a chance, and 18 years old should be okay depending on the rate of approval of pipeline cases and the number of monthly filings, as well as the percentage of approvals.

    10. Can anyone tell me how long the EB-5 waiting line will be for China born applicants?

    No, this is impossible to determine with certainty.  However, Mr. Charles Oppenheim has unofficially indicated that by September 2016, the end of the 2016 Fiscal Year, the Department of State should be processing cases from summer 2014. [Writer’s note: this is speculative as there are too many variables].

    11. That really isn’t so bad-are you saying the China born EB-5 wait line will only be at about 2 years for the reminder of Calendar Year 2015? What about for Calendar Year 2016?

    Yes that is what has been unofficially stated. Starting October 1, 2015, the beginning of the Fiscal Year 2016, we can expect the waiting line to recover to about 2 years. Therefore on October 1, 2015, we should see priority dates of about October 2013, meaning that we should see advancement of about one month per month for the remainder of this year. [Writer’s note: Caution – there are too many variables to accurately predict, but applicants, lawyers and regional centers need to plan, so I have provided a guesstimate. This may not be accurate. Calendar Year 2015 really won’t be so bad in terms of the waiting line, and the beginning of Calendar Year 2016 may have an acceptable wait of about 2 years, but this may increase to about 2 1/2 years by the end of Fiscal Year 2016, which is September 30, 2016.]

    12. What can we expect regarding the movement of the China EB-5 cut-off date for the remainder of the Fiscal Year 2015–will we advance to June 2013, or retrogress to April 2013?

    The Department of State has just informally informed me that the establishment of a China EB-5 cut-off date appears “to have stabilized number use” and it is likely the June Visa number will hold at May 1, 2013. This is good news as it appears they do not have to retrogress the cut-off date, so while it’s early as there are several hundred cases with dates earlier than May 1, 2013, it appears likely it won’t get worse.  In October when the new 10,000 visa quota is announced, there should be improvement.

    Also, Congress and/or President Obama’s Executive Action may provide relief. For more information on this topic, see numerous recent blogs at Wolfsdorf.Connect.

    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."

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