On August 23, 2014, the Department of State announced that the numerical limit of EB-5 immigrant visas available to Chinese applicants for FY2014 has been reached. This is significant because it is the first time that the EB-5 immigrant visa quota allocated to Chinese applicants has been reached since Congress created the EB-5 program in 1990. However, given that there is only one month left in FY2014 and a new allocation of about 10,000 visas will be available on the first day of FY2015, October 1, 2014, there is little impact on most Chinese EB-5 applicants who are already well into the application process for FY2014. Moreover, EB-5 visas have already been allocated to individuals who have scheduled visa interviewsin August and September 2014 at the U.S. consulates. As such, immigrant visas will be issued if, during the interviews, the applicants can prove satisfactorily to the Visa Officer that they are qualified for the EB-5 visa. However, if an applicant who failed an earlier EB-5 interview and scheduled an interview in August or September 2014 to retry his/her case, then the applicant has to wait until at least October 1, 2014 to be issued an immigrant visa even if his/her EB-5 visa application is approvable.
The Department of State warned that the China EB-5 category will likely become overly subscribed, and consequently require establishing a cut-off date in FY2015, possibly in May 2015. If and when a cut-off date is established, it is estimated that the wait time will be two years and possibly longer, the reason being that the first stage, I-526 petitions are taking on average 15-16 months to adjudicate (longer if USCIS issues a Request for Evidence), and that there are currently 10,000 I-526 petitions pending adjudication with USCIS. Furthermore, the cut-off date may be retrogressed and may not move forward every month, depending on the number of I-526 petitions approved. Consequences of the backlog in China EB-5 categoryinclude age-out derivative beneficiaries and material changes in business plans and timing of job creation.
In sum, the Department of State’s announcement has virtually no impact for those Chinese EB-5 applicants who are already well into the application process for FY2014. However, the cut-off date, if and when established in FY2015, will have significant impact on Chinese EB-5 applicants from that point onward. For additional information regarding the China EB-5 category, please visit http://www.natlawreview.com/article/us-d........