This post is an updated version of the article included in the NES Financial Navigating a Changing EB-5 Sector: Insights from Experts 2016 Summer eBook, which can be downloaded for free here.
The immigrant visa backlog for EB-5 investors subject to the China quota threatens to undermine the EB-5 Immigrant Investor Program (“EB-5 Program”). Chief amongst the many factors that have caused the formation of this backlog are demand from mainland China that constitutes over 80% of investors. Unless and until remedies are created at the legislative and/or executive level to reduce the long waiting times, the ability to use the EB-5 program as an avenue for immigration will decrease. This article looks to current data released by U.S. Citizenship and Immigration Services (“USCIS”) and the U.S. Department of State (“DOS”) to demonstrate how the immigrant visa backlog for Chinese EB-5 investors has been created.
EB-5 Visa Allocation
The Immigration and Nationality Act (“INA”) allocates an annual amount of 10,000 immigrant visas to EB-5 investors and their derivative beneficiaries. This EB-5 immigrant visa quota was established in 1990, has never been changed, and until recently, has been sufficient to meet the demand for EB-5 immigrant visas. Immigrant visas issued to each derivative beneficiary are charged to the principal beneficiary’s preference category. In FY 2015, the DOS issued a total of 8,773 immigrant visas to EB-5 principal and derivative beneficiaries. Of those issued, 2,919 (33%) were issued to principal beneficiaries, while 5,854 (66.7%) were issued to derivative beneficiaries. An additional 991 visa numbers were used by USCIS to complete adjustment of status cases in the U.S. Accordingly, with an average of three green cards issued per approved Form I-526 petition, approximately 3,100-3,300 EB-5 investor family units are able to immigrate annually.
Increased Filings and Processing Times of Form I-526 Petitions
Despite the many contentious issues in the EB-5 arena resulting in calls for reform, the EB-5 Program has never been more popular among foreign nationals, especially those from China. Over 20,000 petitions remain unadjudicated in the pipeline at the Immigrant Investor Program Office (“IPO”) in Washington, D.C., and another 20,000 approved visa applicants are waiting for final green card interviews to be scheduled. A record breaking 12,852 new Form I-526 petitions were filed during the 6-month period from July 1, 2015 through December 30, 2015. This unprecedented surge was due to the sunset of the program and the announced increase in the minimum investment amount, as well as the possibility of other reforms to the EB-5 Program. At the same time, the average processing time to adjudicate a Form I-526 petition has increased to 16.6 months as of May 31, 2016.
Fewer Adjudications, and Increased Denials, of Form I-526 Petitions
USCIS adjudicated 1,629 Form I-526 petitions in FY 2016 Q1 and 2,501 in FY 2016 Q2, despite its receipt of 7,125 Form I-526 petitions during the same period. Of the 4,130 Form I-526 petitions adjudicated, USCIS approved 3,121 (75.6%) and denied 1009 (24.4%). Although there is insufficient data to confirm a broad trend, the data for FY 2016 Q1 and Q2 (October 1, 2015 through March 31, 2016), the increased Form I-526 petition denial rate is double that for FY 2015.
Large Number of Pending Form I-526 Petitions at USCIS
As long adjudication processing times continue to remain the norm at the IPO, the number of pending Form I-526 petitions has increased from 13,569 at the end of FY 2015 Q1 to 21,988 at the end of FY 2016 Q1, representing a 62.5% increase. This number was reduced to 20,235 as of the end of March 2016. The IPO is clearly inundated with Form I-526 petitions.
Majority Form I-526 Petitions Filed By Individuals Born in Mainland China
For the past few years, the overwhelming majority of Form I-526 petitions submitted was filed by foreign nationals born chargeable to China. In FY 2015, 8,156 EB-5 immigrants were from China, equaling 83.5%). Along with the annual allocation of 10,000 immigrant visas, the INA establishes per-country levels, or country caps, at 7% of the worldwide level. Country caps are not set to ensure that certain nationalities make up 7% of immigrants, but rather to ensure that a limit is set to prevent any immigrant group from dominating immigration patterns to the United States. As a result China and Lichtenstein both have the same quota. Once the annual allocation of 10,000 EB-5 immigrant visas is reached, EB-5 immigrant visa applicants from over-subscribing countries (those that use more than 7% of the worldwide total) are required to wait for a future fiscal year’s allocation to be available before proceeding with consular processing or adjustment of status. Since no other country comes close to the 7% per country limit, China is able to use all available EB-5 visas allocated annually. Despite this, the remaining available visas are still insufficient to meet current demand from China resulting in an ever increasing waiting line. When this happens, DOS establishes a queue by assigning each EB-5 investor a “priority date,” which is the date that USCIS receives the EB-5 investor’s Form I-526 petition.
When DOS establishes a cut-off date each month in its Visa Bulletin, only EB-5 investors with approved Form I-526 petitions and priority dates before the Chart A cut-off date are eligible to proceed with consular processing or adjustment of status, unless USCIS announces that Chart B – Date for Filing (DFF) can be used. The waiting line under Chart B is considerably less than under Chart A – Final Action Date (FAD). According to the July 2016 Visa Bulletin, the Chart A cut-off date for investors chargeable to China is February 15, 2014. The Chart B cut-off date is May 1, 2015. This means that Chinese EB-5 investors with an approved Form I-526 petition filed before February 15, 2014 are now authorized to schedule an immigrant visa interview at a consular office abroad. As a result, there is currently over a 28 month visa backlog for EB-5 investors chargeable to China. USCIS is authorized to allow applicants in the U.S. to file Form I-485 Application to Register Permanent Residence or Adjust Status. Last year USCIS allowed applicants to file Form I-485 based on Chart B for two months in October and November 2015, the beginning of the FY 2016. Hopefully, USCIS will do so again in October and November 2016 to provide some relief for those waiting for EB-5 immigration benefits.
Solutions to the Chinese Waiting Line
Critical issues stem from the Chinese EB-5 waiting line. One is the inevitable ageing out of minor children, who risk turning 21 years old before they receive their green card. EB-5 projects must also plan ahead regarding significant repercussions such as the use of escrow accounts, job creation, the “sustainment” of the capital investment, and the repayment of funds to investors through a Regional Center. Hopefully, Congress will recognize the value of the $10+ billion already invested through the currently pending I-526 petitions alone, as well as the billions invested in the last few years, and the thousands of direct and indirect jobs at stake.
Some of the many solutions include: allocating immigrant visa numbers based on families not individuals; allocate the many wasted EB-5 numbers from previous years to pending cases; and to protect age-out children, freeze the child’s age at the time of filing the petition, and/or hold the petitions of investors requesting delayed adjudication to allow children to deduct this “pending petition time” under the existing Child Status Protection Act (“CSPA”). Other solutions include allowing investors to file adjustments based on Chart B – Date For Filing and permitting applicants with approved I-526 petitions into the U.S. for the purpose of filing for adjustment of status.
Minors as Primary EB-5 Investor
With the waiting line for Chinese EB-5 investors getting longer every month, many Chinese investor parents are concerned their derivative beneficiary children will turn 21 before an EB-5 visa number will be available and the child may therefore “age out.” Unfortunately, the Child Status Protection Act only allows for subtraction of the number of days the Form I-526 petition was pending (usually about 1-1 ½ years) from child’s biological age. Consequently, many investors are questioning whether it may be better (for both derivative beneficiary eligibility reasons, and even for tax reasons) to have the minor child be the primary EB-5 applicant.
The acceptance of minors as principal EB-5 investors may pose risks to Regional Centers, EB-5 projects, and even escrow agents and banks under U.S. laws. This is a relatively new issue and is in an untested area. With adjudications taking over one year, the EB-5 community may not know USCIS’ position on minors as principals for some time. Accordingly, investors should be advised there is risk from the USCIS perspective, and for Regional Centers, EB-5 projects, and even escrow agents and banks, there is risk from both the USCIS adjudications perspective, and from the minor investor being able to elect to set aside the investment contract upon reaching the age of majority.
Legal counsel, including corporate, securities and immigration attorneys should be cautious to explain these risks when offering advice to parents about having their children as the primary investor.
Unfortunately EB-5 applicants chargeable to China who filed Form I-526 petitions in the beginning of 2014 will need to wait about 2½ years for their conditional green cards, but those who filed in the end of 2014, may have to wait 3½ to 4 years or longer unless Congress or the Administration provide additional visa numbers or other solutions. Until solutions to alleviate this waiting line are implemented, it is important for prospective investors and their counsel to carefully prepare a long term strategy, which incorporates accommodating nonimmigrant visa options, such as F-1 student, F-1 Optional Practical Training, H-1B specialty occupation, L-1 company transfer, O-1 extraordinary ability/achievement and other nonimmigrant visas to ensure Chinese investors can achieve their education and personal goals.
 Number of I-526 Immigrant Petitions by Alien Entrepreneurs by Fiscal Years, Quarter, and Case Status 2008-2016, U.S. Citizenship and Immigration Services, May 25, 2016, available at https://www.uscis.gov/sites/default/files/USCIS/Resources/Reports%20and%20Studies/Immigration%20Forms%20Data/Employment-based/I526_performancedata_fy2016_qtr2.pdf (last accessed July 20, 2016).
 U.S. State Department Report of the Visa Office 2015, Table V (Part 3), available at http://travel.state.gov/content/visas/en/law-and-policy/statistics.html (last accessed May 27, 2016).
 8 U.S.C. § 1153(b)(5).
 8 U.S.C. §§ 1153(d), (h).
 See FN 1.
 USCIS Processing Time Information for the Immigrant Investor Program Office, USCIS, July 14, 2016, https://egov.uscis.gov/cris/processingTimesDisplay.do (last accessed July 20, 2016).
 The average Form I-526 petition denial rate from FY 2015 is 10.7%.
 8 U.S.C. § 1151(a)(2).
 The derivative beneficiaries receive the same priority date as the principal beneficiary. See 22 CFR 42.53(c).
 Visa Bulletin for July 2016, U.S. Department of State, Bureau of Consular Affairs, June 8, 2016, https://travel.state.gov/content/visas/en/law-and-policy/bulletin/2016/visa-bulletin-for-july-2016.html (last accessed June 22, 2016).