Fairness for High-Skilled Immigrants Act
December 3, 2020 32 Comments
Update: As I hear additional news on the Fairness Act, I add notes to my Washington Updates page.
Yesterday, the Fairness for High-Skilled Immigrants Act came a step closer to becoming law, passing the Senate by Unanimous Consent. (Meaning that Senator Mike Lee, after many previous attempts, finally managed to slip the bill through at a time when no one was in the room who knew to object. See yesterday’s Congressional Record p. 49 for this smooth move, and p. 62-65 for the amended bill text.) IIUSA says “Having been amended in the Senate, the bill now returns to the House of Representatives for review and vote on the amended text.” Rep. Zoe Lofgren in the House says “While I recognize the sincerity of all Members and Senators struggling to find solutions, unfortunately the provisions sent to the House by the Senate yesterday most likely make matters worse, not better,” but also “I plan to swiftly and thoughtfully work with my colleagues to resolve outstanding issues and get a measure across the finish line that can pass both Houses of Congress.”
This legislation has been in Congress for a long time (since 2011), primarily thanks to the efforts of companies who depend on H1-B workers. The bill’s backers care about EB-2 and EB-3; the bill’s EB-5 impact is apparently an almost accidental and little-noticed side effect. But the EB-5 impact would indeed be earthshaking, since the bill proposes to eliminate the country caps that limit high-demand countries and protect EB visa availability for minority countries. This would change how green cards get allocated for conditional permanent residence, and affect all current and prospective investors who do not get CPR before the bill’s effective date. I’ve written about it several times previously, including last year when the House version H.R. 1044 got action.
I’m out of the advocacy loop, and not clear on the prospects from here, either under President Trump (whose base as represented by Brietbart slams the bill as an “outsourcing giveaway,” but who might be forced to sign if the House embeds this in other must-sign legislation) or President Biden (whose VP is the original co-sponsor to S.386 Fairness for High-Skilled Immigrants Act, but who might be open to better solutions). I’m not clear who is advocating or how for various EB-5 interests. But knowing the composition of the EB-5 backlog, I can once again remind the industry of the impact, if the Fairness for High-Skilled Immigrants Act were to become law as currently drafted.
The version of the FFHSIA in last night’s Congressional Record has these significant points for EB-5:
- Removes the per-country limitation for all Employment Based visas (by amending 8 U.S.C 1152 202(a)(2) to strike reference to Employment Based visas and subsection b)
- Includes transition rules and some savings provisions for EB-2 and EB-3 (“visas made available under each of paragraphs (2) and (3) of Section 203(b)”), but no transition rules or other modifications or protections for EB-5 (visas available under paragraph (5) of Section 203(b))
- The effective date is “the first day of the second fiscal year beginning after the date of enactment of this Act.” I understand that to mean October 1, 2022, if the act passed now.
- There’s some language regarding status adjustment that might help EB-5, but I’m not sure how to interpret it.
- There’s a “prohibition on admission or adjustment of status of aliens affiliated with the military forces of the People’s Republic of China or the Chinese Community Party.” I don’t know how much this differs from existing rules, and whether it would result in reducing the EB-5 queue any more than it gets reduced already by denials. Potentially, this provision could be very harmful because negatives are notoriously hard to prove. If it came to that, how would I, Suzanne Lazicki, prove that I have no affiliation with the CCP? I have no evidence to prove my lack of affiliation.
How would the Fairness for High-Skilled Immigrants Act recognize the EB-5 backlog?
I have granular analysis that I’ve discussed in previous posts, but I fear that the detail made people’s eyes glaze over and lost attention for this important topic. So this time, I’ll just take a simple approach.
Consider the following table from IIUSA’s Discussion with Charles Oppenheim (November 19, 2020), which estimates the total current size of the EB-5 wait line.
With country caps under current law, the average 10,000 visas annually available to EB-5 get allocated in this order: no more than 7% to each country demanding visas, and any visas remaining to the oldest applicants regardless of country. Practically, this means no visa wait and no backlogs for people from countries that demand fewer than 7% of available visas, but backlogs and wait times for countries that demand more than 7%.
If country caps were eliminated, then visas just get issued in order to the oldest applicants first, regardless of country. So to estimate the “wait time for an EB-5 applicant filing today” you’d ignore all those country rows and just divide the grand total applicants by the annual visa quota. 83,000/10,000=8.3. When ignoring country of origin, the current EB-5 queue is 8-9 years long. If the FFHSIA were passed, then anyone filing a new I-526 today, regardless of country of origin, could expect to wait 8-9 years just for conditional permanent residence.
For people already in the EB-5 process, your visa wait time would be less than nine years if FFSHIA passed, with how much less depending on how long ago you filed I-526. If you filed I-526 in 2018 or 2019 from any country, you could expect to wait at least over five years for conditional permanent residence, since we know that most Chinese in the queue filed earlier than that (their filing surge occurred 2014-2017), and thus at least most of the China backlog recorded in the above chart (57,000 people) would move ahead of you in line. The FFHIA change would have most benefit for those oldest Chinese applicants–those with filing dates from 2015 to early 2017–who could expect most available visas for the coming five years, based on their early filing dates. The wait line gets more diverse from mid 2017 on, so wait times would become long for everyone then.
What difference would a October 1, 2022 effective date make? That delayed effective date would help anyone who is not from China and who does have enough time to push through the I-526/visa process and get green cards under current rules before October 2022. Otherwise, the delayed date doesn’t change much since new wait time estimates mainly depend on the number of China-born people in line, and that number may not get a chance to change very significantly in the coming 1.5 years under the current visa process.
If the FFHSIA would help you or hurt you, act at once. Contact your advocacy group/Congressional representative/advisors and let them know how you feel about the possibility that S.396/H.R.1044 Fairness for High-Skilled Immigrants Act could become law. If you’re from China and filed I-526 before 2017 (or a regional center with such investors), you are probably in favor of FFHSIA, unless that Community Party provision is a problem (though notice that you’d benefit even more from advocating for the visa quota to get applied to principals only, not family members). If you’re anyone else in EB-5, you probably want to advocate against FFHSIA, or at least advocate for savings provisions to protect investors and projects who already committed to and depend on the EB-5 process/timing outlook as defined by existing rules.
The EB-5 backlog and wait times are definitely too long, and that hurts everyone. FFHSIA proposes changes that would improve the wait time situation for some at cost of making it much worse for others. I hope that we’ll eventually have chance to unite as an industry in support of legislation that would improve the backlog and wait time situation for everyone. For example, by interpreting the EB-5 quota as Congress originally intended to apply to investors, not diluted by counting spouses and children.
EB-5 Updates 
Fantastic work as usual, Suzanne! I’m from India and received an RFE for my I526 with a PD of Dec 2017. Assuming I file a response to the RFE by Jan 1st and is approved sometime around July 1st, could this potentially affect my ability to apply for conditional residency next year if this bill were to become law immediately on signing sometime early next year and not in 2022?
The most immediate possible effective date would be October 1, 2021. I think you should at least be able to apply before then, but you not only want to apply but also get final action before the law changes. So for your situation, hopefully the law will not change after all.
Thanks, Suzanne. I’m hoping if I get my I485 and AP request in prior to Oct 2021, USCIS will grandfather my application in even if conditional GC hasn’t been issued by then.
Hi Suzanne, as you would remember, my PD was 12/01/2016 (Indian born applicant) and my I-526 got approved on 09/28/2020. How many days my file from uscis reaches nvc and how many days it takes for visa from nvc and new bill has passed can affect my file?
This link describes the process: https://travel.state.gov/content/travel/en/us-visas/immigrate/the-immigrant-visa-process/step-1-submit-a-petition/step-2-begin-nvc-processing.html
Everything about the process has been atypical and delayed over the past year due to COVID-19, but hope things will speed up again soon.
If this bill is passed, why would anyone with a straight mind apply for EB-5?
I expect that no one would, for at least another five years. That realization should inform reaction to the bill now, while it’s still not law.
This bill will kill Eb-5 program altogether for 10 years . However on the side of fairness program should be reformed so that it does not create situations like current backlog.
Real problem is the bills translation period putting top 2 countries in the same mix and ROW in other mix .
The country that will suffer the most is the second in the list AKA india . It may remove and shut it from transition period completely .
This will 100% remove india from EB-5 market forever .
Why in the word someone wants to do it .
“On the side of fairness program should be reformed so that it does not create situations like current backlog” — YES!
India is a mixed case because quite a few Indian EB-5 investors are also in the EB-2 or EB-3 line, which the act is designed to help.
Dear Suzanne
My priority date of I-526 is Nov 18, 2019. My nationality is Hong Kong-born.
With this priority date and the current bill, will it affect my I-526 to get my conditional green card?
Will I get the conditional PR before the effective date of this bill?
Thank you.
Martin
I-526 processing and the visa process would have to speed up very dramatically to allow you to get conditional PR before October 1, 2022. So for your situation, you probably depend on the bill not becoming law as written.
Does it mean that if the bill is written as law on the effective date of Oct. 1, 2022.
I would probably have gotten my conditional green card by that time?
Thank you.
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Hi Suzanne,
Will this bill also affect those who have already adjusted their status? I filed for I485 last week. I have also applied for EAD and AP. In the event this bill comes into effect on Oct 1,2021, will my AOS application be abandoned? Because I am certain that I won’t get conditional green card before oct 1, 2021. I am from India
This would be a better question for your lawyer, as I’m just a layman in reading legislation. It looks to me as if you’d need to get final action, not just filing, before the effective date if the law passed. But again, I’m an amateur.
What odds would you give of the bill passing removing cointry caps for eb5?
Hi Suzanne, as you would remember, my PD was 09/07/2018 (Indian born applicant) and my I-526 got approved on 11/23/2020. USCIS is probably in the process of informing NVC about my case. Would my case be affected at all from a timing standpoint?
Hi Suzanne
My PD is December 2018 and I am from India. How will this affect my application
Hi All, My I-526 got approved on 3rd August 20, India born PD March 18…But my file is still not reached to NVC…Understand it is taking now up to 6 months…Any experience; comment; advise is welcome.
That’s really scary… A quick question – how do you find out if your file has reached out NVC or not? Is there a way to track?
That’s really scary…. A quick question – how do you know if your file has reached or not reached NVC? Is there a way to track it?
Note this Q&A from the November 2020 engagement with IPO:
(16) Why are delays being encountered with sending an approved I-526, Immigrant Petition by Alien Investor, to the National Visa Center?
The pandemic and USCIS’ hiring freeze affected IPO staffing levels and workplace procedures. Early in the shift to pandemic-safe operations, IPO experienced operational deficits which temporarily impacted our program’s ability to transition cases to the National Visa Center. This deficit has been identified and we are actively working to address this concern.
(https://www.uscis.gov/sites/default/files/document/outreach-engagements/IIUSA_2020_Virtual_EB-5_Industry_Forum-IPO_Chief_Sarah_Kendalls_remarks.pdf)
I would also like to hear about anyone’s recent experience with the USCIS-to-NVC transition, and whether there actually has been any improvement.
Hi Suzzane, Please give some ideas what to do if the approved I-526 case still not reached to NVC after around 6 months ?
USCIS is not providing any definite reply just sending standard automated reply. Call to USCIS, is also noting down the case to reply within one month.
I’m not sure what to do except have your lawyer keep following up. At the November 2020 engagement, Sarah Kendall acknowledged this I-526-to-NVC delay problem and claimed they were working to fix it (https://www.uscis.gov/sites/default/files/document/outreach-engagements/IIUSA_2020_Virtual_EB-5_Industry_Forum-IPO_Chief_Sarah_Kendalls_remarks.pdf). And I hear that immigration lawyers through AILA have organized to apply pressure to fix the problem.
Thanks Suzanne
That’s really scary…. A quick question – how do you know if your file has reached or not reached NVC? Is there a way to track it?
Contacted several times USCIS & NVC, Always getting their standard reply. NVC will inform that Petition has not reached. USCIS will register the inquiry with promise to reply within 30 days. I assume, it is happening with others also as my case was simple NRI one, got approval without any RFE. But now a long waiting as the lot of files are pending in USCIS from months for NVC.
See this link for an explanation of the process: https://travel.state.gov/content/travel/en/us-visas/immigrate/the-immigrant-visa-process/step-1-submit-a-petition/step-2-begin-nvc-processing.html
Hi Suzanne & CG,
I have filled I 526 on 20 Nov 2019(Indian). As CG mention his fill “PD was 09/07/2018 (Indian born applicant) and my I-526 got approved on 11/23/2020”, approved in @22 months.
What do you think guys, how much time will take in my case? should I wait for I526 approval or withdraw my petition?
The time for your case depends on (1) the backlog I-526 pending when you filed, (2) the order IPO will use in assigning petitions going forward, and (3) how productive IPO will be with I-526 processing going forward. Each of these three factors is different for you, having filed in November 2019, than for someone who filed I-526 in 2018. I consider all those factors in detail in my timing consultation (https://blog.lucidtext.com/eb-5-timing/eb-5-timing-estimates/). But generally, I think there’s reason for optimism about I-526 timing with incoming leadership at USCIS who are not primarily motivated to stall immigration.
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