Country cap discussion (H.R.1044, S.386, S.2091, S.Amdt.939. D/26-3)

— Original Post from 7/3–

How many EB-5 visas are available today to offer prospective investors?

If visas were simply allocated in order by priority date, then the answer would be 0, until about the year 2027. That’s assuming 74,000+ EB-5 investors plus family already in line divided by 10,000 EB-5 visas available annually equals 7.4 years to clear the backlog and have visas available for new investors. If visas were simply allocated in FIFO order, then all past investors in the queue would be looking at a wait of less than 8 years, with timing graded by priority dates.

As it is, visas are allocated in order by priority date subject to per-country limits. Under current rules, 3,000 to 6,000 visas are practically available to new investors annually in the coming years. (=10,000 annual quota – 1,400 annually promised to past investors from India and Vietnam under the per-country limits – 3,000 to 5,000 to be claimed annually by past investors from miscellaneous countries that are under the limit and gradually emerging from the I-526 process.) Thanks to the Chinese Student Protection Act, past Chinese investors get no by-right allocation, but priority dates give Chinese first priority for whatever is leftover. The current rules of FIFO plus per-country caps mean that visa waits for past investors vary widely from no time at all to over 16 years.

The Fairness for High-Skilled Immigrants Act proposes to change the rules, and do away with country limits for employment-based visas and the China visa reduction. Normally I just disregard rumblings from Congress, assuming they’ll come to nothing, but there’s been significant movement on H.R.1044 – Fairness for High-Skilled Immigrants Act of 2019. This bill now has 311 co-sponsors — 75% of the House. Zoe Lofgren moved on June 18 to have HR 1044 placed on the Consensus Calendar, which means it could be brought to a vote (Update: now scheduled for consideration the week of July 8) although it hasn’t been reported out of committee. It’s likely that momentum will die in the Senate, whose a mirror bill S.386 has less traction so far. (Update: The Senate bill now has action as well, with an amendment to address H-1B concerns.) Since the proposal seems so popular, I discuss the EB-5 implications.

I suspect that the bill is mainly popular for its nice title – fairness for high-skilled immigrants – and that few people have undertaken the extraordinarily difficult task of reading it and thinking through the practical effects.

Here’s my attempt to interpret the H.R. 1044 text (which differs from the Yoder Amendment text we discussed last year, mainly by adding a three-year transition period). The new HR1044 tab in my Backlog Calc Excel shows my best attempt at a quantitative analysis of the EB-5 implications. Based on this work, I draw these conclusions about what H.R. 1044 would mean to a variety of EB-5 stakeholders:

• Past EB-5 investors from China: Under HR 1044, would receive visas at least 3-5 years earlier than under current rules
• Past EB-5 investors from India: Under HR 1044, priority dates in 2017 and earlier would not be much affected, but investors with 2018/2019 priority dates would receive visas 3-4 years later than under current rules.
• Past EB-5 investors from Vietnam: Under HR 1044, priority dates in 2016 would not be much affected, but investors with 2018/2019 priority dates would receive visas 2-3 years later than under current rules.
• Past EB-5 investors other countries: Under HR 1044, priority dates after 2017 would receive visas 3-5 years later than under current rules.
• Future EB-5 investors from any country: Under HR 1044, EB-5 investors from any country who file shortly after the date of enactment would wait 7-8 years for visa.
• EB-5 industry: Would likely go into hibernation, except for services to past investors, for 7-8 years (or not, if prospective investors are willing to face the wait times)

The bill attempts a “no harm” provision, providing that those with a petition approved before the new rules take effect would be given a visa no later than they would’ve received it under the old rules. That’s cold comfort for EB-5, however, because about half of the backlog of past investors is still stuck at USCIS, waiting for petitions to be adjudicated. (Also, I don’t know how Department of State would implement the provision – “would have beens” being impossible to calculate with precision in the EB-5 visa context.) As a reminder, here’s the last EB-5 visa backlog snapshot provided by Department of State, estimating where people were in line as of April 1, 2019. At least the 73,157 people represented on this chart would be affected one way or other by HR 1044, if it became law.

Here are EB-5 groups attempting to influence Congress one way or another on The Fairness for High-Skilled Immigrants Act:

• An EB-5 investor group in favor of the proposal: https://www.aa-ed.org/
• An EB-5 investor group urging modifications to the proposal to protect people with pending I-526: http://bit.ly/2FtZshz
• IIUSA’s cautious public position: https://iiusa.org/blog/iiusa-statement-hr-1044-per-country-caps/

— UPDATES —

12/17: David North thinks that this is the final language of Mike Lee’s renegotiated Fairness for High-skilled Immigrants Act. This version would still eliminate the country caps on all EB visas (including EB-5), with no transition period for EB-5, and no savings provision for people with pending I-526 petitions. It offers the chance to file I-485 before the visa is available, which would be nice. (I believe this offer applies to EB-5, though the text on exceptions is extremely difficult to read.) There will reportedly be another attempt to get this through the Senate by unanimous consent on 12/19.
10/16: Senator Durban, the senator most recently responsible for holding up Mike Lee’s S.386 proposal to eliminate the country cap on EB visas, has now introduced alternative backlog relief legislation: Resolving Extended Limbo for Immigrant Employees and Families (RELIEF) Act. The bill text for S.2603 has not been published yet, but I’ll report further when I’ve read it. Cato Institute has a nice analysis of the bill’s content, implications, and (extremely slim) prospects.
9/30: Cato Institute has published a quantitative analysis of the Fairness for Highskilled Immigrants Act. An excellent article by Ira Kurzban has also been brought to my attention.
9/26: Now Senator Durban has stepped up to block unanimous consent to the Fairness for Highskilled Immigrants Act
9/25: Senator Purdue has agreed to drop his opposition to the Fairness for Highskilled Immigrants Act. I wait with bated breath to see what happens next.
9/19: There has been another attempt to get Fairness for Highskilled Immigrants Act through the Senate by unanimous consent, temporarily blocked by Senator David Perdue. Apparently the country cap proposal still has life after all, with the enormous power of Silicon Valley campaign donations possibly even competitive with the enormous power of Congressional inertia. Here is my summary of the most recent language: S.Amdt.939 to H.R.1044. Like S.386, this most recent version removes all EB visas (including EB-5) from the per-country cap, but omits EB-5 from the transition period, and limits the no-harm provision to people who have approved I-526 petitions on the date of enactment.
7/22: Nothing seems to be happening with the country caps proposals anymore. There’s been no reported action in the Senate on S.386, and Rand Paul has not bothered to announce S.2091 or collect any cosponsors.
7/11: Rand Paul, one of the Senators responsible for blocking S.386 in the Senate, will reportedly introduce a country caps proposal of his own in S.2091 Backlog Elimination, Legal Immigration, and Employment Visa Enhancement Act (BELIEVE Act). As time permits I’ll make a spreadsheet for S.2091, which would be much better for EB-5 since it proposes to significantly increase visa availability in addition to changing the per-country limitation. Probably it is too good to be popular, however. (Update: I made this document to highlight/interpret EB-5-relevant language in S.2091.)
7/10: H.R. 1044 passed the House today. S.386 has also made progress thanks to the addition on 7/10 of an amendment with H-1B provisions designed to broaden its appeal. The Senate’s version of the The Fairness for High-Skilled Immigrants Act differs from the House version in omitting EB-5 from the transition period. I added a tab for S.386 to my Backlog Calc Excel file to attempt to model this effect. The calculations suggest that H.R. 1044 and S.386 would have about the same effect on people with 2018 and 2019 priority dates (in either bill, it looks as if 2018 priority dates would start receiving EB-5 visas around 2025, and 2019 priority dates around 2027). S. 386 would be 2-3 years better than HR 1044 for China-born applicants with priority dates up to 2017, and 2-3 years worse than H.R. 1044 for applicants from other countries. In both the House and Senate versions, The Fairness for High-Skilled Immigrants Act is good for everyone in EB-5 with an old priority date (China) and bad for everyone who doesn’t want to move back in line behind the China backlog. I regret to say that the most informative article I’ve read so far on the politics around The Fairness for High-Skilled Immigrants Act is Brietbart’s Kevin McCarthy, 140 GOP Reps Vote for Democrat Plan to Outsource Jobs (July 10, 2019). The article includes this interesting quote:

The Department of Homeland Security finally announced its opposition to the Senate’s version — S.386 — of the legislation…:

The Department of Homeland Security does not support S. 386. The bill would do nothing to move the current employer-sponsored system toward a more merit-based system. The adverse effect on immigrant visa wait times for nationals of countries currently with lesser demand would be an obstacle to any potential plan to promote or increase immigration from countries who immigrants present reduced risk, such as Visa Waiver Program countries, or any other class of countries which the Administration may desire to provide preferential treatment (e.g., countries with which the U.S. has negotiated favorable trade deals).

The statement was signed by Joseph Joh, Assistant Director and Senior Adviser for the Office of Legislative Affairs at DHS.

And additional analysis from the same source: Jeff Bezos, Mark Zuckerberg Try to Sneak ‘Country Cap’ Prize from President Donald Trump (July 18, 2019)

Updates (USCIS director, visa bulletin, visa numbers, regs litigation, country caps)

Another post with bits and pieces of news you should know in EB-5.

USCIS Leadership and Processing Improvements

Ur Mendoza Jaddou, the nominee for USCIS Director, made this statement to the Senate Judiciary Committee at her nomination hearing on May 19:

At the heart of a functioning immigration system is an agency that effectively processes immigration and naturalization applications under the law, like those of my family and so many others. This means that USCIS must process applications fairly, efficiently, and in a humane manner; be accessible, transparent, and accountable; and safeguard the integrity of the system; and ensure the security of the nation.

My most immediate responsibilities if confirmed will be to return the agency to firm solvency, resolve dramatically increasing processing times and backlogs, and utilize 21^st century tools. I’ll work to ensure that USCIS retains the confidence of the American public as an agency able to fulfill its mission. In addition, I’ll work to ensure that the hardworking and dedicated men and women, my former colleagues at USCIS, have the resources, leadership, and support they need to carry out their roles without undue difficulty.

[Transcribed from Ms. Jaddou’s opening statement 1 hour and 23 minutes into the hearing video.]

These are precisely the words I wanted to hear. I also appreciated this testimonial from the U.S. Chamber of Commerce:

Ms. Jaddou has significant experience working on immigration policy and she is very familiar with the operations of USCIS. Ms. Jaddou’s knowledge and experience would be indispensable in providing the critical leadership needed to stabilize the agency’s financial challenges, reduce its significant processing backlogs, and provide stakeholders with more consistency throughout the various adjudications processes it conducts every day. Throughout Ms. Jaddou’s public service, she has shown a keen understanding of how USCIS operations affect businesses across various industries. The Chamber is confident that she would continue to consider the views of the American business community on the issues that are critically important to the ability of many companies to meet their current and future workforce needs.

Ms. Jaddou presented herself well at the hearing, and did not get many questions. A couple Senators grilled her on the controversial issue of parole, and one asked about tackling petition backlogs. Regarding backlogs, she noted that she has a running start thanks to understanding all the small steps that go into creating processing times. I hope that she is confirmed soon! The Biden Administration has nice-sounding goals for restoring integrity to USCIS operations, and I’d love to see a few of them realized.   

Visa Processing and Availability (Vietnam, China, FY2022 numbers)

Department of State Press Office has been doing a wonderful job with the YouTube live chats at https://www.youtube.com/user/TravelGov/videos In just a few minutes a month, Department of State reminds us that they have skilled, caring human beings ready to take and respond to public questions. Watch and learn, USCIS.

At the end of the June 2021 Visa Bulletin “Chat with Charlie” (minute 33) Charles Oppenheim mentioned “an excellent chance” that the Vietnam EB-5 Final Action Date will be “current” by September 2021. Current means that any Vietnamese who’s ready at the visa stage could proceed to final action then, regardless of filing date. Mr. Oppenheim did not give any background to this prediction, but we can identify two reasons:  (1) slow I-526 processing limiting the number of Vietnamese who reach the visa stage, and (2) Vietnam’s excellent work in controlling COVID-19 and getting consular processing back on track. Judging by visa issuance so far, Vietnam may be the one country that may actually approach the 1,302 EB-5 visas technically available to each country in FY2021. According to statistics on monthly visa issuance, Vietnamese had received 541 EB-5 visas through consular processing as of April 2021. Ho Chi Minh City issued a heroic 320 EB-5 visas in March alone. If that kind of performance continues into next year, the estimated visa wait time for incoming Vietnam EB-5 applicants could be reduced from the expected 7-8 years to more like 5-6 years.

Guangzhou and Mumbai are still not doing well with EB-5. I count only 29 EB-5 visas issued to Indians and only 14 to Chinese through consular processing so far this year (October 2020 to April 2021). The consulates in China and India are issuing a small number of visas in all categories, and EB-5 sadly belongs to the “Tier 4” lowest level in Department of State’s priority list. The best hope for Chinese and Indian EB-5 applicants may be to catch up next year, when EB-5 will once again have additional visas available.

EB-5 visa availability in FY2022 will be increased by a share of the unused family-based visas that spill over from FY2021. In the “Chat with Charlie” video linked above, Mr. Oppenheim stated that he expected the FY2022 Employment-Based visa limit to be at least 290,000. That would mean EB-5 would get over 20,590 visas (7.1% of the EB total) and each country would get over 1,441 visas (7% of the EB-5 total). If consular processing is back to normal by then, and those extra visas could be issued, then India and China could at least counterbalance the losses in FY2021.

The June 2021 Visa Bulletin finally moved the China EB-5 Final Action Date from August 15, 2015 (where it’s been since last August) to September 15, 2015. In the “Chat with Charlie” linked above, Charles Oppenheim indicated that he expects to continue to move all EB dates aggressively, but mentioned China EB-5 as a specific exception to that rule.  (For other EB categories, he predicted that the the “dates for filing” in the June 2021 visa bulletin will likely be the “final action dates” in the September 2021 visa bulletin). Department of State elaborated further in an AILA Liaison Committee Meeting on May 27, 2021. AILA had asked “2. Given that Guangzhou resumed IV processing on April 9th, how far does DOS expect the EB-5 final action dates to advance by the end of this fiscal year?” DOS responded: “The China EB-5 Final Action Date will be advanced based on estimates of visa availability under the FY 2021 EB-5 annual limit. Movement of the date is likely to be limited based on the large number of filings received during September 2015.”

EB-5 Regulations Litigation

I’ve avoided commenting on the litigation to invalidate the EB-5 Modernization Regulation – an effort that’s justified and that also risks derailing regional center program reauthorization efforts and being misrepresented to prospective investors. What makes an immigrant investor program attractive? One important factor: price. A more important factor: whether the program even offers a path to immigrate. That second factor is in question now, and must be resolved before the regulations can make a difference.

For expert analysis of what the litigation involves and could imply, see these articles:

“Court may invalidate 2019 EB-5 Regulations while regional center legislative expiration looms” (May 14, 2021) by Robert Divine

“Behring Regional Center v. Department of Homeland Security and The Case for Common Sense” by Aaron Grau, May 2021 Regional Center Business Journal (page 37)

Update: Behring Companies hosted a helpful webinar on June 7 to explain their goals and vision for the litigation, and expected outcomes. Recording available here.

Country Caps Legislation (EAGLE Act)

The country caps debate is now officially back on the table, as Rep. Zoe Lofgren has reintroduced the Fairness for Highskilled Immigrants Act, now called the EAGLE Act. The bill text reflects H.R.1044 from last Congress, and once again offers no transition period to protect in-process EB-5 investors, should the bill become law. (The proposed transition period and special provisions apply to EB-2 and EB-3 only, suggesting who’s paying for lobbying.) Country caps are what prevent high-demand countries from claiming all available visas in EB categories. If the EAGLE Act passed, then the EB-5 visa wait line would become simply first-come-first-served order, benefiting the tens of thousands of Chinese who have been waiting longest, and creating unexpected multi-wait times for applicants from most other countries. With over 80,000 people in the EB-5 wait line, a new investor from any country could expect to wait over 8 years for a visa. (I discussed the implications in this post.) Country caps legislation has been around for many years without getting passed. It managed to pass both House and Senate in last Congress, but didn’t end up on the President’s desk. We’ll see what happens this time around. Kamala Harris had co-sponsored the Fairness Act when she was a Senator.

Other Articles of Note

“The Corporate Rights of EB-5 Investors: How to Navigate the Legal Maze of Redeployment and Liquidation Once the EB-5 Investment is Repaid” by Vivian Zhu and Rogelio Carrasquillo May 2021 Regional Center Business Journal (p. 10)

“What The Latest Unemployment Data Tells Us About The Trends and Distribution Of EB-5 TEAs” by Lee Li May 2021 Regional Center Business Journal (p. 40)

I am once again a “Top 5 Business Plan Writer” in the EB5 Investors Magazine poll. A big thank you to my industry colleagues who have voted for me every year since 2016, and to clients who trust me with their business plans. I continue to enjoy the challenge of figuring out how to make EB-5 work for business.

Fairness for High-Skilled Immigrants Act

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.

Reauthorization, Country Caps, S.2540, Visa Bulletin

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.