EB-5 Visa Availability Concerns

With the State Department’s announcement last month relating to the high level of interest in the EB5 Program by Chinese nationals and an article in the Wall Street Journal suggesting that EB5 Visas have been ‘sold out’ there is now a misconception that EB5 visas are not currently available for new applicants to the program. We would like to clarify the status of the program and to make it clear that visas are in fact available for investments in the United States.

Number of Visa Applications

USCIS is authorized to issue 10,000 visas under the Employment Based Fifth Preference visa category every fiscal/program year. The program year runs from October 1 through September 30. USCIS received more than 8,000 I-526 visa petitions in the first 8 months of the 2014 fiscal (which ends on September 30, 2014). These requests are pending approval and the conditional visas have not yet been issued but that application rate suggests that the program is on pace to be fully subscribed in 2014.

Visas are available

The aggregate number of EB5 visas issuable each year has been stated above. However, countries are allocated a maximum number of visas. If a country does not use its allocation in a given year that excess capacity may be utilized by another country in that year. Mainland China is the only country with applications in excess of its allocation and therefore Mainland China is the only country whose applicants may experience visa retrogression at this time.

EB5 visas are fully available and processing continues as normal for all other applicants. Many applicants from India, South Korea, Vietnam and countries in Latin America have been applying to the program and are successfully investing in projects and continue to receive visas.

Chinese visa availability

Although we have noted the surplus of applications from Mainland China it is important to explain that visas continue to be granted to Mainland Chinese applicants.

The announcement of an August 23, 2014 ‘cut-off date’ by the State Department has given the impression that EB5 Visas will no longer be available to these applicants after that date.

However, the October 2014 Visa Bulletin issued by the State Department also shows that Mainland Chinese visas remain ‘current’. How can this be if a visa ‘cut off’ date has been announced?

Interviews will be honored for applicants who have already been given interview dates even if the interview falls during the period of August 23, 2014 through September 30, 2014. Applicants who were not granted an interview date as of August 23, 2014 (or who missed a previous date and hoped to make up for it during this fiscal year) must wait until the new fiscal year, October 1 2014, to be given a date for an interview. Applicants may continue to submit I-526 Petitions and USCIS will process these but these applications will remain ‘pending’ until October 1.

Summary

EB5 Visas remain widely available for nationals of countries other than Mainland China and for those of Mainland China who were notified of interview dates prior to August 23, 2014.

Applicants from Mainland China who have not been granted an interview date or who are submitting a petition during the remaining fiscal year will be eligible to interview for the 10,000 new visas that will be made available in less than two weeks.

There is a growing concern that delayed processing times of older applications coupled with an influx of current year applications will cause a backlog sufficient to change the ‘current’ status of the program however (i) USCIS has increased its staff (and projects another round of hiring in the next year) to more quickly handle its case load and (ii) this issue affects only one country.

Project managers should be buoyed by the increased interest of other nationals in the program and the view that Chinese investors (who had a tendency to deliberate and delay investing in projects) are now expected to act more quickly and shorten the marketing process.

USCIS has made, and continues to make, significant changes to support the program and boost the market. If you would like to discuss these efforts and learn how to leverage this program for your projects please don’t hesitate to reach out to us at info@opesgroup.online or call 646.701.7036. We are at your service, partnering for progress.