Copied from AILA:
Practice Alert: China EB-5 “Unavailable” for Remainder of FY2014: What Does This Mean?
On Saturday, August 23, 2014, at the AILA EB-5 Conference in Chicago, Charles Oppenheim,
Chief of the Department of State Immigrant Visa Control and Reporting Division, announced
that effective immediately, the EB-5 preference category had become “unavailable” for Chinese
applicants. This practice alert provides additional information and discusses some of the
practical implications of the announcement.
It is important to note that a China EB-5 cut-off date has not been established and the
Visa Bulletin for September 2014 (which states that China EB-5 is still “Current”) has not
been amended. Therefore, this is not a visa retrogression.
“Unavailable” simply means that for the first time since the EB-5 program was created
almost 25 years ago, the maximum number of EB-5 immigrant visas which are available
for Chinese applicants for fiscal Year 2014 has been reached, while sufficient numbers
for all other countries remain to ensure compliance within the annual Fiscal Year 2014
allocation.
A new allocation of about 10,000 visas will be available on October 1, 2014, which is the
first day of Fiscal Year 2015. As a result, there will be virtually no impact on most China
EB-5 visa applicants who complete processing within the next 6 to 8 months.
Visas have already been allocated for individuals with EB-5 visa interviews at the U.S.
consulates in August and September 2014 so interviews will proceed as scheduled and
visa may be issued to qualified applicants. A technical exception to this involves
applicants with August or September “comeback” interviews (a “comeback” interview is
scheduled for individuals who failed to prove themselves as documentarily qualified at
an earlier interview). If approvable, they will have to wait until at least October 1 to
obtain a visa.
Immigrant visas will continue to be valid for 6 months from the date of issuance.
Applicants should be sure to enter the U.S. before the expiration date of their immigrant
visas, as requests for replacement visas to accommodate travel to the U.S. outside of
that 6-month period may not be possible.
USCIS does not request immigrant visa numbers from the Department of State for I-485
adjustment of status applications until the time of adjudication. If visa numbers are
unavailable at the time of review, USCIS will hold the application in abeyance pending
availability of visa numbers.
USCIS processing of EB-5 adjustment of status applications will proceed. However,
issuance of immigrant visas to China EB-5 applicants will be authorized effective October
1, 2014, when the new Fiscal Year 2015 allocation is available.
Applicants chargeable to China who are also cross-chargeable to another foreign state
(e.g., Hong Kong, Macau, Canada, France, etc.) based on marriage or other claim1
may
request that they be cross-charged in an effort to receive a visa in August or September,
but this is not assured as the annual allocation for all foreign states is almost depleted.
The Visa Bulletin has not been amended (i.e., visa numbers are still listed as “available”),
so eligible China EB-5 applicants may continue to file for adjustment of status in August
and September 2014.
Though other employment and family visa categories already have waiting lines, this
announcement is significant because this is the first time the EB-5 category has reached
the annual limit. The State Department appears to be providing a warning that the China
EB-5 category will become oversubscribed and require the establishment of a cut-off
date, possibly as early as May 2015, near the end of the third quarter of Fiscal Year
2015.
The announcement is also significant because it provides clear evidence that EB-5
demand, which has increased 700% since 2007, will certainly result in the establishment
of a China cut-off date in Fiscal Year 2015.
It is impossible to determine what the “date gap” will be when a cut-off is announced,
most likely in May 2015. There are estimates that the wait time will be approximately 2
years. Since most I-526 petitions are presently taking 15 to 16 months (Requests for
Evidence are commonplace), an additional wait of about 6 months does not yet appear
to be unduly worrisome. The concern is that once a cut-off date for China EB-5 is
established, the Department of State may have to retrogress that date, depending on
the number of petitions approved, and the cut-off date may not move forward every
month. With over 10,000 petitions currently pending with USCIS and about 3,000 filed in
the last quarter ending June 30, 2014, this wait time is likely to increase.
Consequences may include age-out of derivatives, and complex issues regarding the
timing of job creation, the requirement for which is currently set artificially at 30
months from approval of the I-526 petition (at the I-526 stage), and 36 months from the
time of acquisition of conditional permanent residence (at the I-829 stage).