For First Time EB-5 Investor Visa Reaches Annual Limit

By Reuben S. Seguritan

August 27, 2014

The State Department announced last August 23 that the EB-5 immigrant visa cap for China for fiscal year 2014 has been reached. This means that immigrant visa numbers for Chinese nationals under the employment-based fifth preference (EB-5) category for this fiscal year is no longer available. This is the first time that a country has reached its annual limit since the program began almost twenty-five years ago.

The Department of State clarified that this is not a visa retrogression since no cut-off date has been established. Chinese nationals who are already scheduled for interview at a U.S. consulate in August or September this year may be issued visas as they have already been allocated for them. Applications for adjustment of status will be accepted but they will be put on hold until visa numbers are available. The EB-5 category for China will again be current on October 1, the start of the fiscal year 2015.

Visa numbers are still available for the nationals of other counties such as the Philippines although the annual worldwide allocation is almost exhausted.

The EB-5 visa category allows foreign nationals who can make substantial investments to become permanent residents. It is one of the fastest ways to obtain a green card. We recently represented Indonesian nationals who applied under the program and they received their green cards in less than a year.

There are two ways by which one can become an EB-5 investor. The first is through the regular program which requires the investor to make a $1 million investment ($500,000 in a rural or high unemployment area) in a new commercial enterprise which will create at least ten full-time jobs.

The second way is through the pilot program which permits investments in designated regional centers that will create at least ten jobs, directly or indirectly. There are more than 70 regional centers today and most of them require a $500,000 investment. The regional center program was recently extended until September 30, 2015.

The alien investor must file an I-526 petition along with supporting documents showing the investment in the enterprise or regional center and demonstrating that the funds came from a lawful source. Once that is approved, he can file for a conditional green card. The condition will be removed two years after the investor’s admission as a conditional resident upon showing that the required number of jobs was created.

Congress allotted 10,000 visa numbers to EB-5 investors. Spouses and unmarried children under 21 are included in the count. But the program has drastically grown in popularity in recent years that a waiting line might be created next year. For example, in 2006 the USCIS received less than five hundred I-526 petitions. In 2012, it received over 6,000 petitions. There are over 10,000 petitions pending at this time.

A cut-off date might have to be imposed for the EB-5 category for China in May or June 2015 because of the continued high demand, according to Charles Oppenheim, Chief of the Department of State Immigrant Visa Control and Reporting Division, who made the announcement. It is expected that the visa backlog for Chinese nationals under the EB-5 category could be several years or more.

Investors whose priority dates are prior to the cut-off date would not be able to immigrate until an immigrant visa is immediately available. An investor who is in the U.S. must be careful not to lose lawful status in order to be eligible for adjustment of status once a visa is available. Even if the investor has an approved I-526 petition, the investor cannot file for adjustment of status if a visa number is not yet available to him.

In contrast with the family-based and other employment-based preferences where the delays range from several years to more than two decades, the EB-5 category with a relatively short processing time is preferred as it is still one of the fastest routes to a green card.