The Chinese EB-5 Waiting Line Stretches to 26 Months (and Derivative Children Are Starting to Age-Out)
This is the first of a three-part series on understanding the impact of the Chinese EB-5 waiting line on derivative children. This blog only addresses issues relating to Chinese born nationals since only the China born or more accurately, persons chargeable to the China quota, are impacted.
Part 1 will describe the emerging issues,
Part 2 will describe the steps that need to be taken to try and protect children from aging out, and
Part 3 will discuss potential administrative and legislative solutions.
For more information on this topic, register for IIUSA’s Advocacy Conference April 20-23 in Washington, DC and listen to Charles Oppenheim, Chief of the Visa Control and Reporting Division, U.S. Department of State and Bernard Wolfsdorf on Friday, April 23 at 9 am.
10 Things EB-5 Applicants Need Know About the Child Status Protection Act (“CSPA”) to Avoid Aging Out (Part 1)
Just back from a month of speaking at seminars throughout China, Bernard Wolfsdorf provides the latest news and information for the EB-5 industry.
- Only cases filed before February 1, 2014 are being scheduled for final interviews in April 2016 in Quanzhou. We are presently about halfway through the cases filed between October 2013 and March 2014 (Q1 FY 2014 to Q2 FY 2014). However, the China cutoff date is now moving at the rate of only about one week per month. From March 2016 to April 2016, visa movement slowed to a crawl as the China EB-5 cut-off date moved a mere 8 days from January 22, 2014 to February 1, 2014. At this pace we may not get to March 2014 filings until July 2016 and we may not complete March 2014 filings until October or November 2016.
- To make matters worse I-526 filings steadily increased for the remainder of FY 2014 ending September 30, 2014. There were a total of 4,683 I-526 filings for the 6-month period from 10/2013-3/2014 (Q1 FY 2014 and Q2 FY 2014). However, during the next 6 months from 4/2014-10/2014 (Q3 FY 2014 to Q4 FY 2014) there were a total of 6,240 filings. This is an increase of about 331/3%. It could therefore take over 2 years to schedule all the FY 2014 cases for final interview. To get some perspective, in the past two fiscal years 2014 and 2015, only about 6,000 I-526 petitions were processed through to completion by the State Department, and maybe another 500 (guesstimate) by USCIS. With denial rates of between 10-25% and possible other attrition, the total number of petitions to be processed to completion is likely about 9,000, rather than the 10,928 actually filed in FY 2014. However, based on past visa issuance rates these 9,000 I-526 petitions will take about 3 years of quota to process to completion. This is because in the three Fiscal Years 2013, 2014 and 2015 the U.S. State Department issued visas based on only 8,500 petitions, plus another 500 petitions (guestimate) for USCIS. Therefore, about 9,000 total I-526 petitions resulted in almost three years of visa quota being used. The chart below shows we are presently midway through completing FY 2014 Q2. Most importantly it clearly shows how many visa petitions are ahead of those currently being filed.
- USCIS presently has over 21,000 petitions pending (representing $10.5 billion of capital invested with only $1.5 billion available annually for actually approved cases). We therefore have a serious waiting line problem for Chinese applicants and unless Congress acts soon to alleviate this quota backlog, the program could be in jeopardy, especially as many derivative children will age out.
- With the larger number of I-526 filings in FY 2014 yet to be scheduled for final interviews, it is likely the China cut-off date will continue to move at the rate of about one week per month.
- Before the establishment of the China cut-off date, many EB-5 Investors were under the impression their children would be able to immigrate with the family, provided the I-526 petition was filed before the derivative child’s 21st birthday.
- With the increasing waiting line, this is no longer true as the Child Status Protection Act “CSPA” only permits the time the petition was pending to be deducted from the child’s age.
- If the Chinese EB-5 waiting line is longer than the I-526 petition pending time, (presently about 14-19 months for most cases) plus the time between the filing of the I-526 petition and the child’s 21st birthday, the child can still age out. This is despite the protection given by CSPA. For example, if the I-526 petition was filed one day before the derivative child’s 21st birthday on April 1, 2015, and the petition took one year to adjudicate, the child will likely age out because the EB-5 quota cut-off date backlog is now well over 2 years. The child’s only chance of being included under current rules is if the I-526 adjudication is delayed.
- Does it make a difference if the child was only 20 years old at the time of filing and the petition took 12 months to adjudicate? Yes. Here the derivative child gets to deduct 12 months from his or her actual age at the time of approval, plus an additional 12 months before his or her actual 21st birthday. Therefore, the child essentially has at least 24 months from the time of filing to lock-in or ‘freeze” his or her age.
- Unfortunately, however, the waiting line as of April 2016 is now 27 months for final green card appointments. Since the priority date in the example above is not current based on the Visa Bulletin Chart A, which is February 1, 2014, the child continues to age upon approval of the petition and will possibly age out. This is because the child may be unable to lock-in or freeze his or her age by taking steps to “seek to acquire” permanent residence before reaching age 21. Upon approval of the petition, the child continues to age unless he or she can “freeze” their age. The final determination of whether a child is protected under CSPA is only made at the final immigrant visa interview. In this case, the China cut-off date must advance by 14 months for this child to be able to “freeze” his or her CSPA age under 21 and become eligible to immigrate with his or her parents.
- Regardless of whether or not this child will age out, it is critical to take steps to “seek to acquire” lawful permanent residence status.
For more details on the required steps, watch for our next blog to be published in about two weeks, also view our past webinars and,
This post originally appeared on Wolfsdorf Immigration Law Group. Copyright © 2016 Wolfsdorf Connect - All Rights Reserved. Reprinted with permission.
Bernard Wolfsdorf is the managing partner of the top-rated law firm, Wolfsdorf Rosenthal LLP (www.wolfsdorf.com), and the past national president of the 14,000-member American Immigration Lawyers Association (AILA). Established in 1986, Wolfsdorf Rosenthal LLP is known worldwide for providing exceptional quality legal services. With 19 lawyers and offices in Los Angles and New York, the firm was recently listed as a top-tier immigration practice by Chambers & Partners with several of the firm's attorneys listed in the 2015 International Who's Who Legal. Mr. Wolfsdorf specializes in EB-5 investment immigration in addition to the full range of global immigration matters.
For additional information REGISTER HERE for our two-part Webinar Series: EB-5 Hot Topics Part 1 on April 27 at 7 PM PDT and Part 2 on May 25 at 7 PM PDT. These webinars will discuss these and other topical issues in the EB-5 arena.