U.S. Government has been busy considering how to use immigration policy as a tool to mitigate COVID-19 crisis. Up till now, EB-5 program has not been harmed, except some threats, such as Senator Grassley sent a letter to the president suggesting to extend the current immigration crackdown amid coronavirus to include guest workers, student trainees, and EB-5investors.
Many industrial stakeholders expect that EB-5 applicants might benefit indirectly next year from measures that prevent visas from being issued in other categories this year. The latest Visa Bulletin revealed continued advancement for EB-5 cut-off dates.
The final action dates for EB-5 visa applicants from countries that are experiencing a visa backlog on the June 2020 Visa Bulletin are:
• China: July 15, 2015 (advanced 2 weeks from the May Bulletin);
• India: January 1, 2020 (advanced 2 months from the May Bulletin);
• Vietnam: April 22, 2017 (advanced 3 weeks from the May Bulletin).
Visa bulletin. Washington, D.C.:U.S. Dept. of State, Bureau of Consular Affairs.
U.S. Citizenship and Immigration Services (USCIS) temporarily suspended in-person services at its field locations to help slow the spread of Coronavirus 2019 (COVID-19). USCIS offices are scheduled to reopen on April 7 unless the public closures are extended further. Despite these locations are closed, USCIS staff are continuing to perform duties that do not involve contact with the public. That means Immigrant Investor Program Office (IPO) is continuing to adjudicate I-526, I-829, and I-924, and to terminate regional centers. EB-5 investors at the visa stage will be affected by the fact that all biometrics appointment have been temporarily suspended until at least April 7, all appointment will be rescheduled once USCIS again resumes normal operations.
U.S. Citizenship and Immigration Services. (2020). USCIS Response to Coronavirus 2019 (COVID-19). Retrieved from https://www.uscis.gov/about-us/uscis-response-coronavirus-2019-covid-19
S Lazicki. (2020, March 27 EB-5 updates and resources under COVID-19 (updated). Retried from https://blog.lucidtext.com/
On the March visa bulletin, the China Final Action date for employment-based fifth preference just jumped five months to December 15, 2015. This rapid advancement not because lack of Chinese with approved I-526, but simply because fewer Chinese eligible to be called for a visa interview.
The March visa bulletin inserted a reminder to Chinese with approved I-526 to get “documentarily qualified” at National Visa Center, otherwise would losing place in line. Here is image from the March visa bulletin.
This brochure https://travel.state.gov/content/dam/visas/PDF-other/NVC_role_in_IVs_for_applicants_November_2016.pdf from DOS gives an overview of the NVC process and what it means to be documentarily qualified.
U.S. Citizenship and Immigration Service officially announced today a process change for Form I-526, Immigration Petition by Alien Investor, from a first-in, first out basis to a visa availability approach.
According to USCIS, this new approach parallels with other visa-availability agency adjudications processes, is more consistent with congressional intent for the EB-5 Immigrant Investor Program, and increases fairness in the administration of the program. USCIS Deputy Director Mark Koumans said, “This new approach increases fairness, allowing qualified EB-5 petitioners from traditionally underrepresented countries to have their petitions approved in a more timely fashion to receive consideration for a visa.”
This operational change is consistent with the agency’s processing of Form I-130, Petition for Alien Relative, in cap-subject categories. The new approach simply gives priority to petitions where visas are immediately available, or soon available, and will not create legally binding rights or change substantive requirements. Applicants from countries where visas are immediately available will now be better able to use their annual per-country allocation of EB-5 visas. The new visa availability approach will apply to petitions pending as of the effective date of the change. USCIS will implement the visa availability approach on March 31, 2020.
USCIS will hold a public engagement on March 13, 2020, from 11:00 a.m. to noon eastern time, to provide information and answer questions from the public about these operational changes to the management of Form I-526 petition inventory. Applicants from China, Vietnam, and India with pending I-526 need to organize to inform IPO how you feel about this.
On December 19, Congress passed a FY2020 spending bill H.R. 1865, which funds the federal government and extends the EB-5 Regional Center Program through September 30, 2020. This bill has been sent to President Trump, which he is expected to sign.
This new extension provides a 9-month window for industry stakeholders and legislators to continue their work on achieving long-term reauthorization and complete program reform through legislation.
On Oct. 16, Senators Dick Durbin and Patrick Leahy introduced the Resolving Extended Limbo for Immigrant Employees and Families (RELIEF) Act, which is an alternative to the Fairness for High Skilled Immigrants Act ( S. 386) proposed by Senator Mike Lee.
According to Senator Durbin, the new RELIEF Act would:
• Eliminate the current green card backlog over 5 years
• Eliminate the per-country caps for employment-cased green card
• Remove spouses and minor children from the employment-based pool of green cards to the family categories.
Both Fairness for High Skilled Immigrants Act and RELIEF Act would eliminate the per-country caps on employment-based immigration, when the Fairness for High Skilled Immigrants Act contains no change in the amount of total employment-based immigration amounts, the RELIEF Act would essentially increase the number of green cards issued each year and claiming to clear the existing backlog of employment-based green cards over five years. An intense debate occurred on the U.S. Senate floor. Each of these senators asked for Unanimous Consent (UC) to pass their respective bills, and each objected to the other. Under current deadlocked situation, we are waiting for some other attempts to address the issue.
On Friday September 27, 2019, President Donald Trump signed short-term spending bill H.R. 4378, which is a continuing resolution bill that prevent another government shutdown and keeps the government funded until Nov. 21. The EB-5 Regional Center program as part of the bill has been authorized through November 21, 2019.
On Sep.24, 2019, Senator Chuck Grassley (R-IA) and Senator Patrick Leahy (D-VT) reappeared on the EB-5 scene and introduced their newer version of EB-5 Reform and Integrity Act to reauthorize the EB-5 Regional Center Program and aim to increase Department of Homeland Security (DHS) control over EB-5; with fees come from both regional centers and investors. It will increase the transparency from all involved in the program, and believed to decrease petition processing times.
Grassley & Leahy introduce EB-5 Reform and Integrity Act to increase security, curb fraud, and extend program 5 years (2018, Sep. 27). Retrieved from https://greencardbyinvestment.com/grassley-leahy-introduce-eb-5-reform-and-integrity-act-to-increase-security-curb-fraud-and-extend-program-5-years/
The next EB-5 Regional Center Program sunset date is September 30, 2019. The industry experts widely believed that the EB-5 Regional Center Program will be included in the Congressional appropriations bills and will be passed without reform. However, it will come up again for reauthorization in few months, when the next omnibus bill is going to be voted.
With the implementation of the EB-5 Modernization Regulation (RIN 1615-AC07), it is possible that the Congress may actually spend time establishing reforms to the program. In reality, the EB-5 Program desperately needs changes to the visa cap and the per-country limit. Without these changes, the backlog may still grow. Currently, two additional rules are in early stage in the Rulemaking process. They are:
• RIN 1615-AC11, the Regional Center Program Regulation, which proposed changes to regional center designation and process.
• RIN 1615-AC26 EB-5 Immigrant Investor Program Realignment, which is going to solicit public opinion on proposals would increase monitoring and oversight, encourage investment in rural areas, redefine components of the job creation requirement, and define conditions for regional center designations and operations.
The EB-5 Immigrant Investor Program Modernization Regulation (RIN 1615-AC07) is published on July 24, 2019 in the Federal Register. This final rule is in effective on November 21, 2019, 120 days from the date of publishing in Federal Register.
This final rule has increased standard minimum investment amounts from $1,000,000 to $1,800,000, and from $500,000 to $900,000 in a Targeted Employment Area (TEA). Meanwhile, TEA’s designation is subject to redefined rules, the TEA definition of a rural area remains unchanged. However, the specially designated high unemployment area may be designated by USCIS, not by the states as now. In addition, the final rule also provides priority date retention; clarifies USCIS procedures for the removal of conditions on permanent residence; as well as some miscellaneous changes.
This new rule is going to take effect in 120 days, unless there is litigation against USCIS regarding the regulation, or there is a new law overrule the regulation. To understand the rule in detail, please read entire document of the Regulation at https://www.govinfo.gov/content/pkg/FR-2019-07-24/pdf/2019-15000.pdf
On May 6, 2019, Chief of the Visa Controls Office at the US Department of State, Charlie Oppenheim, appeared at IIUSA EB-5 Advocacy Conference in Washington DC as keynote presenter. During his presentation, Mr. Oppenheim shared some of the firsthand data on EB-5 visa in FY2019, also provided predictions on the EB-5 final action date movements. 【Here a link to Charlie Oppenheim’s presentation slides: https://iiusa.org/wp-content/uploads/2019/05/IIUSA-2019-EB5-Advocacy-Conference-Visa-Update-with-Charles-Oppenheim-1.pdf 】
Based on the current visa usage, Mr. Oppenheim confirmed that India will have its own final action date by June or early July of 2019. Furthermore, China will move to and remain on October 1, 2014, as well as Vietnam will move to and remain October 1, 2016; Brazil, South Korea and Taiwan will remain current for the remainder of FY2019.