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EB-5 Woes

The EB-5 Regional Center program is undergoing change from every direction: its statutory existence is set to expire in about 2 months absent legislation to extend it; there are long delays in USCIS EB-5 petition processing, and significantly, there is a large EB-5 visa backlog owing to increased EB-5 demand from China to date, a country from where about 85% of EB-5 program users originate, which may change the nationality makeup of users of the EB-5 program in the future.

The EB-5 Regional Center program will expire on September 30, 2016 unless Congress reauthorizes it, and many in Congress are concerned about fraud after the Vermont Jay Peak indictments, the largest of many which have occurred, and also about ways to measure the economic benefits of the program.  EB-5 interest groups have begun pressure on Congress to extend the Regional Center provisions accepting many proposed integrity changes and even a likely increase in the investment amount perhaps to $1,200,000 or $800,000 if in a high unemployment or rural area.  The EB-5 program has never had an increase in the investment threshold since the program came into existence in 1990.  Efforts to extend the EB-5 Regional Center program failed last December, 2015, and Congress extended the program unchanged until this coming September.

In its July, 2016 EB-5 processing time information, USCIS reports a 16+ month adjudication time for EB-5 petitioners seeking conditional permanent resident status, and an additional 20+ months for those investors with conditional residence who file to remove conditions of their residence, which is another petition filed with USCIS about 2 years later.  While these processing delays are long, they have not affected investors’ interest and participation in the EB-5 program arising out of the processing wait period.

For citizens of China, though, it is not just processing time that delays gaining lawful permanent resident status, it is having a visa number available.  Unlike foreign nationals from every other country who use the EB-5 program and who have a visa number immediately available, a factor unrelated to USCIS petitioning processing time, investors from China who filed their EB-5 petitions for conditional lawful permanent resident status in February, 2014 have a visa available in August, 2016.  Those Chinese investors who have filed there EB-5 petitions after February, 2014 must wait for a visa number to become available before the investor and his or her family can immigrate to the U.S.  Current information is that USCIS has about 40,000 EB-5 cases filed by Chinese EB-5 investors which are awaiting to be decided, and 20,000 additional Chinese investor EB-5 cases which USCIS has approved but are awaiting visa availability.  Visa availability is an issue because there is an annual quota of just 10,000 EB-5 visas available for investors world-wide, not just from China.  The likelihood is that the wait for all pending and approved EB-5 Chinese investor cases will be years before all such EB-5 Chinese investor cases will have a visa number available.  This multi-year visa wait will likely decrease EB-5 demand from China, prompting EB-5 Regional Centers to seek out investors other countries, especially from India and Vietnam, to benefit from the program.

Stay tuned to EB-5 Regional Center developments as they unfold.

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