Update on Wait Lines for Chinese EB-5 Investors-Is it Really Good News?

by Bernard P. Wolfsdorf

In our November 2012 blog, we discussed the consequences if a wait line developed for Chinese-born immigrants in the EB-5 Investor category. Our blog was based on a prediction in the official December 2012 U.S. Department of State Visa Bulletin, which contained an alert that a China cut-off date might be imposed at some point during the second half of the fiscal year (FY). That would be as early as April 2013. The update in the March 2013 Visa Bulletin, however, brings good news. It states: “Currently there is no reason to believe that it will be necessary to establish a China Employment Fifth preference category cut-off date during FY-2013, since demand over first six months of FY-2013 has now averaged out to a manageable level.”

How did this occur? It appears the massive disruption in adjudication caused by Tenant Occupancy issues slowed visa issuance, such that the wait line may not develop as early in the FY as previously predicted, but it could still happen July 1, 2013 when the fourth and final quarter of the FY begins. Mr. Oppenheim, the Department of State official who oversees the Visa Bulletin, has reported that his office was concerned that the EB-5 numbers for China were moving too fast, but as of late, they appear to be “liveable.” If the numbers and usage remain at the current levels, he does not expect a cut-off for China EB-5 at this time.

However, worldwide EB-5 visa issuance is up 75% compared with this time last year.  We predict that as the Tenant Occupancy issues get resolved, we will see more approvals and the potential for a fourth quarter backlog remains high. Moreover, as most cases take at least 1 to 1 1/2 years to reach the green card appointment stage, most Chinese nationals filing cases now should expect to be affected by this looming wait line. Of course, Congress could tackle the issue in its overhaul of immigration laws and increase the quota, thereby alleviating the looming risk, yet another reason to support immigration reform.

About The Author

Bernard P. Wolfsdorf is the past President of the American Immigration Lawyers Association (AILA). Mr. Wolfsdorf has been named the "most highly rated immigration lawyer in the world" by his peers in the 2011 and 20100 editions of International Who's Who of Business Lawyers. "Mr. Wolfsdorf received more votes from clients and peers worldwide than any other lawyer." Mr. Wolfsdorf is a recipient of the AILA Service Excellence Award for providing outstanding volunteer services. The California Edition of Who's Who recognized Mr. Wolfsdorf as "one of the prestigious names in the field" who "knows his stuff back to front." The Chambers Global World's Leading Lawyers for Business guide noted Mr. Wolfsdorf's "outstanding consular law practice" and called him a "cutting-edge thinker." He is listed in 2011 editions of Best Lawyers in America, Martindale Hubbell's Pre-eminent Specialist Directory, Southern California Super Lawyers, Chambers USA and the Chambers Global World's Leading Lawyers for Business. Mr. Wolfsdorf is a California State Bar-Certified Specialist in Immigration and Nationality Law.

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