Things I Learned from Charlie Oppenheim at the IIUSA 2016 EB-5 Industry Forum
On October 11, 2016 at the IIUSA 2016 EB-5 Industry Forum, Mr. Charlie Oppenheim, Director of Immigrant Visa Control for U.S. Department of State (“DOS”) released critical information regarding the EB-5 program, including predictions regarding the Chinese waiting line.
Mr. Oppenheim also previewed the November 2016 Visa Bulletin, which indicates that the cutoff date for Chinese EB-5 visa applicants under Chart A – Application Final Action Dates is now March 8, 2014, a move of two weeks from February 22, 2014 in the October 2016 Visa Bulletin. The November 2016 Visa Bulletin cutoff date for Chinese EB-5 under Chart B – Date for Filing Applications remains at the date of June 15, 2014, where it will likely continue for several months. Here are four things I learned from Mr. Oppenheim:
- The Chart A cutoff date for Chinese EB-5 visa applicants would move another two weeks to March 22, 2014 in the December 2016 Visa Bulletin. Charlie also indicated that the Chart A cutoff date would likely get to about June 15, 2014 (the current Chart B cutoff date) by the end of FY 2017 (September 2017). This means that, barring some unforeseen circumstance, the Chart A cutoff date will advance by only 15 weeks by the end of FY 2017, and the Chinese waiting line will go over 3 years.
- In FY 2016, only 9,947 EB-5 visas were issued, of which only 14% (1,442 cases) adjusted status in the U.S. While up 4% from FY 2015, this still represents only a small portion of cases, as most EB-5 investors and derivative beneficiaries apply abroad in China. With the new Visa Modernization Initiative, we hope that USCIS opens Chart B – Date for Filing Applications in November so the few individuals with priority dates between March 8, 2014 and June 14, 2014 can file adjustment applications. This will help make sure all possible EB-5 visas are issued, should the consulates not be able to approve or complete all scheduled interviews by the end of the fiscal year. This is the main purpose of Chart B, yet USCIS surprisingly kept it closed only for the EB-5 category.
Agency FY2014 FY2015 FY2016* State Dept. 9,228 8,773 8,505 USCIS 1,464 991 1,442 Total 10,692 9,764 9,947
- 842 EB-5 visas were issued to investors in “direct” EB-5 projects in FY 2016. Of these, 269 were for $1 million investments and 573 for $500,000, as they qualified for Targeted Employment Area (TEA) classification. “Direct” cases increased by over 400% from a mere 156 last Fiscal Year (FY 2015). No doubt the uncertainty caused by the sunset of the Regional Center program has caused a surge in demand for “direct” filings—which is still a relatively small percentage of the overall program. Note that unless the Regional Center program is extended past December 9, 2016, only “direct” cases can be adjudicated and approved, and only direct-based immigrant visas can be issued.
FY 2016* C5 T5 I5 R5 Total China – Mainland born 139 367 6,997 9 7,512 Vietnam 9 5 320 0 334 South Korea 10 16 234 0 260 China – Taiwan born 7 10 186 0 203 Brazil 8 14 128 0 150 Total All Countries 8 14 128 0 8,459 * Through September 2016 (preliminary data)
- While the numbers may change when USCIS adjustment approval nationalities are released, Brazil made it to the top 5 of countries for EB-5 visas, breaking the all Asia domination of the top 5. India was 5th last year. China still leads with the 75.5%, but the percentage has dropped from 83% in FY 2015. (This data is based on data solely on unofficial DOS reports and may be adjusted). In a nutshell, China visa issuance has dropped, and the top 5 are very similar to last year with Brazil showing a surge, together with South Korea and Taiwan. For those who doubt the significance of overseas agents in stimulating the industry, clearly demand is coming from countries where locals are able to educate investors regarding the program.
China 75.5% Vietnam 3.36% South Korea 2.61% Taiwan 2% Brazil 1.5% Rest of the World 15%
Author Bernard Wolfsdorf on Panel with Charles Oppenheim at IIUSA Summit October 12, 2016
Reprinted with permission.
Bernard P. Wolfsdorf, Esq. and Joseph M. Barnett, Esq.: 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. Joseph Barnettis licensed as an attorney in the State of Illinois and the State of Wisconsin and practices exclusively in immigration and nationality law. Mr. Barnett's practice focuses in the area of EB-5 Immigrant Investor Program; EB-1A foreign nationals with extraordinary ability in the sciences, arts, education, business or athletics; and other business immigration matters