Reauthorization, Country Caps, S.2540, Visa Bulletin
September 30, 2019 26 Comments
Since last writing, Congress gave the regional center program another short authorization, the Fairness for High-skilled Immigrants Act almost passed the Senate, Senators Grassley and Leahy introduced a new piece of EB-5 legislation, and the Visa Bulletin offered a surprise window for Indians and Vietnamese to file I-485 regardless of priority date. I’ve had to hop, trying to keep my Washington Updates page up-to-date.
On Friday President Trump signed H.R. 4378, a continuing resolution that keeps the government funded and the regional center program authorized through 11/21/2019 — or until the next funding bill or (more likely) the next short-term continuing resolution. The history of regional center program authorization now looks like this.
The regional center program needs the stability of a long-term authorization — something it hasn’t gotten since 2012. So far as I know, IIUSA and EB5 Coalition are still marching in lockstep and arm-in-arm over a consensus wish list for legislation that combines long-term authorization with an investment threshold lower than what was set in 1990, a neutered TEA incentive, and a TEA set-aside provision to set aside visas for incoming investors at the inevitable cost of reducing visas available to past investors. Meanwhile, last week Senators Grassley and Leahy announced proposed EB-5 legislation that does not appear to have benefited from any EB-5 industry input. S.2540 – A bill to reauthorize the EB-5 Regional Center Program in order to prevent fraud and promote and reform foreign capital investment and job creation in American communities is an updated version of the EB-5 Reform Acts associated with Senator Grassley’s office since 2015. Unlike previous versions, the new bill does not treat investment amounts or TEA designations. It does attempt to define measures that would improve the integrity and security of the EB-5 program. I admire the intention, but wish that Senator Grassley’s office had consulted with anyone who knows EB-5 in practice. If S.2540 passed, it would sweep almost everyone out of EB-5 except a few big-city regional centers (the only ones who could afford the swathes of new red tape and fees proposed) and direct EB-5 (whose existence the bill apparently forgot). That’s not Senator Grassley’s objective. If I had more time, I would write an analysis for Grassley’s office to explain where and how the S.2540 proposals depart from their intent, and suggest fixes that would better support the laudable accountability and transparency goals. Even better if this task could be done cooperatively by the EB-5 industry. But it seems that industry has decided to put all its marbles in the hope of no-compromise backroom deals.
Speaking of a few billionaires trying to cut deals, the Fairness for High-skilled Immigrants Act keeps coming back in the Senate. As of today the bill is blocked by Senator Durban, Senators Grassley, Paul, and Purdue having been talked out of their opposition. The funding bill process offers another possible opportunity to get the legislation passed on the down-low, tucked into a thousand-page omnibus. Unfortunately I can’t find anyone but Breitbart to keep me informed about developments. (I record what I hear of the various versions and actions in this post.) If the Fairness for High-skilled Immigrants Act can pass the Senate and get signed by the President, then there would be no more country cap on EB visas. That means the people already in line for an EB-5 visa – somewhere around 70,000 – would simply receive visas in order by priority date, regardless of nationality. With 10,000 EB-5 visas available per year, that means about 7 years to issue visas to everyone already in line, and 7+ years for any new investors to get a visa. That would be more than fair to the Chinese in line, who invested under a country cap that promised 10+ year visa waits. It would be less than fair to people born elsewhere, who invested under a country cap that promised little to no visa wait. The bill offers to protect people already in the visa queue by saying that no one with an approved immigrant petition shall receive a visa later than that person would otherwise have received a visa under previous rules. However, that doesn’t help EB-5 because most of the non-China backlog is still stuck in slow I-526 processing, and thus does not yet have petition approvals that would protect them. The EB-5 industry has been nearly silent on this legislation, thanks to interests divided between China and the rest of the world. The industry will collapse if the bill passes, with new EB-5 demand quelled by the threat of a worldwide 7+year wait to conditional permanent residence.
I made a couple charts to assist in visualizing the impact of the Fairness for High-skilled Immigrants Act. To estimate how many years a given priority date would need to wait for a visa under the act, just add up the number of applicants with earlier priority dates, and divide by 10,000. (The latest version of the legislation has no transition period for EB-5.) To estimate how many people would be retroactively affected if the Fairness for High-skilled Immigrants Act becomes law, look at the number of applicants represented on petitions still pending at USCIS. (These charts are rough estimates starting from data by country and priority date published by USCIS and DOS as of October 2018, and that I updated with estimates based on worldwide I-526 and visa data since then. I guess the charts may be undercounting by about 10,000. As a reminder, my EB-5 Timing Page collects all the data to which I have access.)
At least there’s one bit of happy news for past investors. USCIS announced that in October 2019, applicants from Vietnam and India who are living in the U.S. and have I-526 approval can file I-485, regardless of priority date. The Visa Bulletin has two charts for EB visas: Chart A Final Action Dates and Chart B Dates for Filing. USCIS has agreed to use the Dates for Filing cart in the October 2019 Visa Bulletin, and all countries except China are Current in that chart. This doesn’t necessarily affect the total time to actually get a visa, but having the I-485 filed brings significant benefits.
The USCIS AOS page explains that it opens Chart B “If USCIS determines there are more immigrant visas available for a fiscal year than there are known applicants for such visas.” The fiscal year starts in October with 700 visas available each to Vietnam and India, and apparently there aren’t yet 700 people ready yet to take those visas. No wonder, when USCIS is only advancing about 200 worldwide I-526 petitions a month. As illustrated in the above chart, much of the effective line for EB-5 visas is still stuck in USCIS processing.
EB-5 Updates 
Hi Suzanne,
I don’t quite understand why i-485 AOS in October would make no significant change to the total eb-5 visa wait time. If USCIS allows to use filing date in October, does it mean those who are already in the US can file for GC regardless their priority date meets the final action date? then their processing time from approved I-526 to conditional green card will be significantly shorter than those apply from outside the States, if they are Vietnamese or Indian
You put your finger on an aspect of the EB-5 process that I’m not clear about. When do visa numbers get assigned in I-485 process? I assumed it was at the end of the process based on visa availability, not at the time of filing. (Assumption based on the number of old pending I-485 for China-born.) But is that assumption incorrect?
Filing dates means USCIS expects Visa Number to be available soon if your petition to be approved and in the mean time will give you a work permit and advance parole if you are already in US. However Green Card will only come when your visa number becomes current. Same goes for other EB categories as well.
Chart B Dates for Filing is current for Indian and Vietnam investors, even though their backlog is also > 5 years. To be fair, it should be also current for Chinese investors. What do you think?
Suzanne, Considering that now even AOS is taking longer with some folks actually getting interview calls it seems the length of processing time has been increased massively thanks to the administration.
nice
Kind Regards,
Bernard Wolfsdorf
Thank you! Looking forward to hearing more from Charlie at the end of the month. And I’m so well prepared with questions for him, if there’s a chance to get in any in advance…
Hi Suzanne,
Thank you so much for this very informative article. It’s really a great news for Vietnamese and Indian investors who live in the US currently. Really wish China mainland born investors could also use the Chart B… just out of curiosity, if USCIS determines there would be less 700 VISA to be used in FY2020 for Vietnam and India, does it mean that USCIS estimate more than 7000 VISA will be allocated to China mainland investors in FY2020?
Regards
In May 2019, Department of State reported that there were 32,169 mainland-China-born applicants at the National Visa Center. That’s certainly well over the number of visas available to China in one year, so there’s no chance of China being “current” in the Visa Bulletin Chart B any time soon.
Click to access IIUSA-2019-EB5-Advocacy-Conference-Visa-Update-with-Charles-Oppenheim-1.pdf
Dear Suzanne,
Does the 32169 mainland-China-born applicants number counting the principle investor only, or it includes qualified derivatives? Charles’ number is little vague here.
Thanks and best regards,
NX
It’s principles plus derivatives, but I agree about ambiguity on the China estimates. I’ve tried to get this clarified, but no response yet. FYI here’s the last email I wrote to IIUSA in May 2019 https://www.dropbox.com/s/ffz1w9ytnu8kqsm/IIUSA%20email%202019-05.docx?dl=0
Hi Suzanne,
Do you think the i526 processing times will get better anytime soon?
Because, all this – country based wait time analysis and visa bulletin priority dates don’t not make any sense until the administration can cut down the i526 processing time.
Its getting close to an year since the processing pace went down.
I hope things will improve. But I’m skeptical, because IPO has not expressed recent intention to improve.
Hi Suzanne,
I filed I-485 in late 2018. My priority date is March 2017. Do you have the data of how many vietnamese applicants with approved I-526 that are waiting for their I-485 visa slot during Oct 15th, 2016 to end of March 2017? My estimate is I would get a visa slot from Jan 2020 to end of march 2020; with the assumption that every month the priority date move forward a month. Thank you
I can estimate the time to visa availability for a given priority date based on data for I-526 filings by priority date. But we don’t have recent data on I-485 by priority date, or division between I-485 and consular processing, and the disorder of I-526 processing makes it difficult to guess which priority dates have recently advanced to the visa stage.
What would be your estimate if my priority is March 15th, 2017? How fast are they processing visa for each country or or is there a limit monthly? My I-526 was approved in just 12 months, roughly from late Feb 2016. Thank you for the quick response.
Final action date for vietnam is 15Oct2016. So effectively they are saying that unless your PD is before 15Oct2016 they have no visas for you. they can only allocate up to max of 1/4 of the country limit ?(696) per quarter. So effectively 174 visas per quarter give or take.
Its been long since USCIS has released I-485 inventory data for EB categories..!! May be IILA and other individuals can take up this, in next meeting..!!
Hi Suzanne,
I have a quick question. It sounds like one of the above commenters filed his I-485 last year and he is still waiting for a visa slot. I thought the I-485 could only be filed after the DOS indicates a visa number is available. Am I missing something here?
(This was a very informative and thorough post! Thank you for all the great work you do.)
These links can help to clarify how visa allocation works.
https://www.uscis.gov/greencard/visa-availability-priority-dates
https://www.uscis.gov/visabulletininfo
At this point, one has to suspect that Congress or Trump administration would rather kill EB5 or have it die a slow death. It makes sense if your agenda is to reduce overall immigration into the US. I cannot think of a simpler reason for 526 processing delay.
The only other reason that I can think is – the longer the 526 takes the longer the over processing and obviously the investment stays in the market for longer time, one way or the other, I mean within the RC under another project or in the form of bonds (if the original project is completed before the investor receives final GC).
USCIS says the investments should stay in the market for 5 years for jobs creation but I guess they wanted to make that money stay in the market for at least 10 years, this can be achieved only by adding additional processing time to both 526 and 829.
@Suzanne – any thoughts if this is being case.
If there’s any conspiracy behind slow processing times, I very much doubt it’s a conspiracy intended to benefit regional centers or maximize foreign investment. I see no other evidence of USCIS commitment to such goals. A conspiracy to stymie immigration generally sounds more plausible to me. But I always believe in incompetence before conspiracy.
So any Indian citizen with an approved i526 can apply for AOS right now? Just want to make sure I understand this right.
Yes, that’s my understanding.
What about an indian citizen with approved 1-526 living in India. Can they travel to the US on an existing non-immigrant B1 visa and apply for AOS?