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Oct 31, 2018

Department of State Gives EB-5 Backlog Projections and Anticipates Cutoff Dates

Matthew Galati

By: Matthew Galati

At the AILA / IIUSA joint conference on October 30, 2018, DHS’ Chief of the Visa Control and Reporting Division Charles Oppenheim gave his projections regarding wait times that families subject to the EB-5 visa backlog might face. His presentation provided the most up-to-date projections available based on current information. The numbers provide key insights for many, especially those weighing EB-5 who have teenage children that might “age out” due to long visa queues.

By way of background, about 10,000 EB-5 visas are made available to investors and their dependents each year. Because more than 10,000 are requested annually, the Immigration and Nationality Act caps the amount available to a given country’s natives at 7.1%. For example, a Canadian citizen born in Beijing is currently subject to the EB-5 backlog, while a Canadian citizen born in Montreal is not.

Oppenheim’s methodology required calculating the approximate number of individuals chargeable to the most active EB-5 countries with pending Forms I-526 and adding that number to the approximate number of individuals waiting for a Green Card after approval (e.g. processing through the National Visa Center). By dividing by the country-specific annual quota, this enables one to make the most informed (yet imperfect) projection as to anticipated wait times.

Furthermore, for any “extra visas” where the addition of all countries not subject to the 7.1% limit together is less than 10,000, those accordingly are to be applied by priority date. Given China’s historical dominance of the program and its unique position among backlogged countries, those visas will be allocated to Mainland-born investors for the foreseeable future.

The results were as follows:

Country

Stated Approximate Wait Time (in years) to Receive a Green Card if Form I-526 Petition was Filed on October 30, 2018

Mainland China (excluding Hong Kong and Macau)

14

Vietnam

7.2

India

5.7

South Korea

2.2

Taiwan

1.7

Brazil

1.5

Rest of world

Expected to be “Current” for Foreseeable future

 

It is critically important to note that these projections were provided with the following disclaimer:

These estimates cannot encompass all variables, such as dissipation from petition revocations, deaths, age outs, withdrawals, etc.; or increases from family “acquired” before visa issuance, possible legislation or other governmental action that might impact the amount of numbers available for use each year.

Wait time estimate is the number of years between the time an I-526 petition is filed [as of Oct. 30, 2018] and the time when an EB-5 visa is likely to be available based on current number use patterns, including the processing time of adjudicating an I-526 petition.

These numbers might not surprise many industry professionals, who have witnessed surges in EB-5 filings from Vietnam and India in 2017-18. For the pessimist, there is a bit of a silver lining in the projections. Some countries listed that many feared would retrogress severely – e.g. S. Korea, Taiwan, and Brazil – will have wait times shorter than average USCIS Form I-526 processing times. In effect, if these numbers and processing times are to hold, there would be no noticeable retrogression because all cases approved and sent to the National Visa Center would have current priority dates.

Mr. Oppenheim further provided projections for the remainder of the fiscal year:

  • An EB-5cutoff date for India is expected to be implemented no later than July 2019.
  • India’s EB-2/EB-3 backlog means that immigrants in those categories still face extremely long wait times. At present usage, it would take five years to move priority dates into 2011.
  • Vietnam is not anticipated to use its 700 visas before April 2019.
  • Vietnam’s Final Action Date will advance to May 1, 2016 in the December Visa Bulletin;
  • Mainland China’s Final Action Date will advance to August 22, 2014 in the December Visa Bulletin.

The figures given were a snapshot as of October 30, 2018. By definition, they are already out-of-date, so consider these projections accordingly. None of the articles published on our Immigrant Investor Blog are intended to be legal advice. Beyond that general disclaimer, it is important to note that the above projections are simply that – projections. These are certainly not guarantees and demand for visas can shift in a short period of time. An individual’s immigration to the U.S. could be significantly slower or faster than anticipated. For example, Congress or the Executive Branch could change laws or policies or an important court case could turn the entire system on its head. Moreover, as many individuals often marry spouses born in low-demand countries (e.g. a Chinese investor marrying a native of Hong Kong), cross-chargeability would apply and obviate wait times for investors that would be subject otherwise.

Nevertheless, these figures are vitally important for those interested in EB-5 immigration, specifically those families weighing whether or not their children will “age-out” or be protected under the Child Status Protection Act. We thank Mr. Oppenheim for his transparency in this regard.

Contact us today to discuss whether EB-5 immigration is right for you and your family.

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