Beginning in May 2015, the EB-5 category will retrogress for Mainland China-born petitioners, according the U.S. Department of State. Retrogression implies that a petitioner who has filed an I-526 petition will have to wait in line for a visa number even after the petition is approved, because the demand is higher than the supply of visas. Since the EB-5 program was established in 1990, petitioners never used all of the available 10,000 visas in this category until fiscal year 2014, that is October 1, 2013 to September 30, 2014. In the past fiscal year, the entire quota was used up just prior to the expiration of the fiscal year (as one can imagine, a giant portion was used by Mainland China-born petitioners).
Beginning in May 2015, the designated cut-off date for Mainland China-born EB-5 petitioners is May 1, 2013, which indicates that the retrogression is two years and effectively means that only those EB-5 investors with an I-526 priority date of May 1, 2013, or earlier, are eligible to apply for an EB-5 immigrant visa. The cut-off date is used to determine an individual’s place in line in the visa waiting list. This date also determines when a foreign national will have the ability to initiate the final step for a green card via adjustment of status or consular processing. For EB-5 investors, the priority date will depend on when each investor’s I-526 petition was filed.
However, cut-off dates do change from month to month, and so it is advised that EB-5 petitioners check the Department of State’s monthly visa bulletin to obtain updates for the visa backlog time.
Additionally, it would be useful to stay abreast of updates with respect to President Obama’s initiatives that were announced in November of last year. In November 2014, President Obama’s Presidential Memorandum on Visa Modernization mentioned two key features that would benefit EB-5 investors:
- Parole: enables entrepreneurs to be paroled into the U.S. and work if they are researchers, inventors, or founders of businesses. If this applies to EB-5 investors, then they would be allowed to enter the U.S. even before residency is approved.
- Early adjustment: enables individuals who are eligible to apply for adjustment of status but for a non-current priority date, to file for adjustment and receive work authorization and advance parole. Thus, if the I-526 petition is approved, the EB-5 investor and family could apply for adjustment of status and receive these benefits.
According to the Presidential Memorandum, it may become possible to recapture permanent resident numbers based on numbers allocated by Congress but left unused. This means unused visas from prior years could be used in a year when there is a larger demand than supply of visas allocated to EB-5.
At the present, when an EB-5 investor files for and has an approved I-526, the investor and his family members count against the 10,000 EB-5 immigrant visa cap. The Presidential Memorandum mentions that it also may be possible to not count derivative spouses and children toward the EB-5 visa quota. This may also help to counteract the retrogression in the EB-5 classification.
Finally, it is important to consider that the May 1, 2013 cut-off date that applies to those from China is based on the country of “chargeability.” This means that the retrogression of visa numbers is based on a petitioner’s country of birth, not country of citizenship. As such, those born in Hong Kong and Macau would not be affected by this retrogression. Also, it is possible that an investor and his or her family may be “cross-chargeable,” where the investor’s spouse was born in a country other than mainland China. This is also a strategy that will enable an investor and his family to avoid the China quota retrogression.
As a practical matter, due to the retrogression, it may be important to consider several issues:
A. Direct EB-5 Investment
An investor is engaged in a direct EB-5 investment, then the retrogression may delay the ability of an investor in managing or supervising his or her business. An investor who is unable to immigrate to the U.S. for many years due to the retrogression may not be able to show that he or she will be able to manage a direct EB-5 investment. As such, he or she may have to find somebody else to manage the business, or find another nonimmigrant visa pathway in order to enter the U.S. to start the business.
B. Regional Center Projects
Various regional center projects contain loans from the new commercial enterprise for EB-5 projects, and these loans are premised on all investors receiving conditional permanent residence before the loans are paid back. As such, changes to loan agreements may be required, and these may affect the exit strategies of EB-5 investors. Regional center projects would have longer periods of time to create requisite jobs due to the retrogression.
C. Child Status Protection Act and “Aging out”
The retrogression may force many child beneficiaries to age out, but the Child Status Protection Act (CSPA) could remedy this problem. Found under INA §203(h), the CSPA allows certain children who are derivative beneficiaries of an immigrant petition to be classified as a “child” under the INA even if the child has already reached age 21. CSPA became effective on August 6, 2002, and essentially protects a beneficiary’s immigration classification as a child when he or she ages out due to excessive processing times.
CSPA cases in the EB-5 category are processed based on an approved I-526 petition and visa availability. The CSPA freezes the age of children who are derivative beneficiaries of I-526 petitions while the petition is pending, but once the petition is approved, the child’s age is no longer frozen if the conditional residence cannot be completed because the quota is not current for that investor. As such, a Chinese investor with children close to age 21 or older will want to freeze the child’s age for as long as possible due to the retrogression.
Due to this retrogression, it will be important to carefully track the ages of petitioners’ children, encourage prompt I-526 filing, and strategize how to extend I-526 petitioning process if a child is close to aging out. The child’s age will freeze only if the beneficiary has “sought to acquire” the status of a legal permanent resident within one year of the visa availability. The “sought to acquire” requirement may be satisfied by presenting evidence that the beneficiary submitted an application to the proper agency in the manner that the application provides, but it was rejected for a procedural or technical reason, such as the absence of a signature. The foreign national may also show that he or she paid an attorney to assist in filing a timely adjustment application and completed and executed the application with the attorney’s assistance prior to the deadline, but the attorney then failed to take the clerical step of timely filing the application with the appropriate agency, thereby effectively preventing the foreign national from filing. However, merely contacting an attorney about initiating the process for obtaining a visa that has become available is insufficient to meet the “sought to acquire” requirement. As such, to benefit from the period of time the child’s age is frozen during the petitioning process under the CSPA, petitioner must make sure that the immigrant visa is applied for within one year of the priority date becoming current.
Step-By-Step Guide to Determine CSPA Age:
- Ensure that derivative meets definition of “child” under CSPA. (For more information regarding CSPA, please refer to our article, Aging Out Children and the Child Status Protection Act.)
- Determine actual age of child on date when a visa becomes available for petitioner. This could be the age of the child on the later of (1) the first day of the month that DOS indicates that a visa is available based on the petitioner’s priority date, or (2) the date the I-526 petition is approved if a visa is already available on the date of approval.
- Determine the child’s CSPA age by subtracting the number of days the petition was pending. This would be the number of days between the date the I-526 was filed and the date of approval (including any administrative review) from the child’s actual age.
- If the CSPA age is under 21, the beneficiary remains a “child” and has one year to seek to acquire LPR status either by filing an I-824, filing an I-485, or filing a DS-260. If one of these forms is not filed within the one-year period, the child cannot become an LPR unless USCIS exercises its discretion and allows the late filing when there is proof of extraordinary circumstances.
CSPA Examples for EB-5 Petitions:
- Petitioner files I-526 on 1/1/14. The form is approved on 5/1/15. Child turns 21 on 3/1/14. The visa becomes available on 6/1/15. The child’s CSPA age is under 21 because the child was 22 years and 3 months old on 6/1/15 but the I-526 was pending for 1 year 4 months. Thus, subtracting the time the I- 526 was pending, the child’s CSPA age is 20 years and 11 months. The child must seek to acquire permanent residence within one year of the visa availability, or before 5/30/16.
- Petitioner files I-526 on 1/1/14. The form is approved on 5/1/15. Child turns 21 on 3/1/14. The visa is available only on 8/1/15 because a cut-off date for China EB-5 has been established. The child’s CSPA age is over 21 because the child was 22 years and 5 months old on 8/1/15 and the I-526 was pending for 1 year 4 months. Thus, subtracting the time the I-526 was pending, the CSPA age is 21 years and 1 month. Child cannot receive LPR status.
- Petitioner files I-526 on 1/1/14. The form is approved on 5/1/15. Child turns 21 on 3/1/14. The visa is available on 6/1/15. The CSPA age is under 21 because the child was 22 years and 3 months old on 6/1/15 but the I-526 was pending for 1 year 4 months. Thus, subtracting the time the I-526 was pending, the CSPA age is 20 years and 11 months. The child files an I-485 immediately on the date the petitioner’s visa becomes available. However, the EB-5 classification retrogresses on 7/1/15 and now the visa is not available until 8/1/15. The child’s CSPA age is still under 21 because USCIS the child’s age is frozen by the I-485 filing.
- Petitioner files the I-526 on 1/1/14. The form is approved on 5/1/15. Child turns 21 on 3/1/14. The visa is available on 6/1/15. The child’s CSPA age is under 21 because the child was 22 years and 3 months old on 6/1/15 but the I-526 was pending for 1 year 4 months. Thus, subtracting the time pending, the CSPA age is 20 years and 11 months. The child does not file the I-485 or submit a DS- 260 with visa fee payment immediately upon visa availability. On 7/1/15, the EB- 5 classification retrogresses to 8/1/15. The child’s CSPA age is now over 21.
- If a petition were approved by USCIS on 4/3/15, and a cut-off date had been established effective on 5/1/15, the National Visa Center will send a fee bill to those whose petitions were approved prior to 5/1/15 to allow the applicant to pay the IV application fee within the 12 month period. The applicant’s CSPA age would be calculated using 4/3/15, the date at which a visa first became available, and the applicant could lock in that CSPA age-out protection by seeking to acquire LPR status by 4/3/16.
- Should the applicant fail to seek to acquire LPR status within that year and the petition becomes current again on 12/1/17, the applicant would again have a 12 month period, or until 12/1/18, in which to satisfy the requirement—assuming that using the visa availability date of 12/1/17, resulted in a CSPA age under 21. If the “sought to acquire” requirement had not been met during the first 12 month period that began 8/3/15, the NVC would send a fee bill once the petition became current again on 12/1/17, affording the applicant the opportunity to satisfy the requirement within the second one year window of opportunity.
In sum, assuming that an I-526 petition’s processing time and visa backlog are both one year long, it is recommended that the petition process be sped up for children who are 20 years old. However, if the I-526 petition’s processing time is one year long, and the visa backlog is two years long, it is recommended that the petition process be sped up for children who are 19 years old, but children who are 20 years old are recommended to initiate their own I-526 petition due to the great possibility of aging-out. In conclusion, it is generally beneficially for the I-526 processing time to be as long as possible, and the visa backlog time to be as short as possible, in order to prevent a child from being aged out while there is a visa backlog.
For more information regarding CSPA and how it applies to all employment-based visa categories, please refer to our article, Aging Out Children and the Child Status Protection Act.
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