Retrogression Guidance for Chinese EB-5 Investors
- Priority Date and Cut-off Date
For EB-5 applications, the priority date is established on the date USCIS receives the I-526. In order for the priority date to be current, it must be a date prior to the cut-off date published in the visa bulletin at http://travel.state.gov/content/visas/english/law-and-policy/bulletin.html. You may sign up online to have the Visa Bulletin automatically e-mailed to you by the State Department each month.
According to the current Visa Bulletin, the EB-5 immigrant visa category for Chinese EB-5 investors will retrogress beginning May 2015, with a cut-off date of May 1, 2013. This means, I-526 cases filed on or after May 1, 2013 will be placed in the waiting line.
Note: If the investor’s priority date is on or after May 1, 2013, and he/she files the DS-260 before May 1, 2015, he/she will still be impacted by the quota. However, the impact may not be very much. The investor may only need to wait for 6 or 8 months.
- Age-out Issue
Pursuant to Section 21.2(e)(1)(ii)(E) of USCIS’s Adjudicator’s Field Manual, an alien seeking classification as a child under sections 203(a)(2)(A) or 203(d), or as a derivative beneficiary under 203(a) or 203(b), who has a “CSPA age” under 21, must have sought to acquire lawful permanent residence within one year of the visa becoming available.
To summarize the above in a simple language, if the derivative child was under 21 years old when the I-526 petition was filed, and the child is under 21 years old at the time of approval using the CSPA calculation, the child has 12 months after the visa becomes available to “seek to acquire” lawful permanent residence status. If the applicant “seeks to acquire” lawful permanent residence (LPR) status within 12 months of the visa becoming available, the applicant will lock in his or her CSPA age-out protection.
There are five ways to meet the “seeks to acquire” requirement:
- Submission of the I-485, if the child is in the U.S. under a valid non-immigrant status;
- Submission of the DS-260;
- Submission of the old DS-230[1] with the visa fee;
- Payment of the visa fee via the DS-260 online system or alternate pay-by-mail method (cashier’s check or money order); OR
- Form I-824 may be filed with $405 to the USCIS.
- Updates on Immigrant Visa Interviews
Effective on April 22, 2015, the National Visa Center (NVC) in concert with the U.S. Consulate in Guangzhou has begun issuing cancellation notices to individuals with scheduled immigrant visa interviews due to retrogression. This is different from prior practice whereby individuals with scheduled immigrant visa interviews would have already been allocated an immigrant visa number, thus not subjecting them to retrogression.
For the individual receiving a cancellation notice, he/she has to wait and re-apply for an EB-5 immigrant visa when his/her priority date becomes current. However, the cancellation will not adversely affect the “aging-out” beneficiaries. Any derivative beneficiary who submitted a DS-260, OR paid an immigrant visa fee will still be protected by the Child Status Protection Act.
- Possible Solutions in the Future
The following measures may be adapted to cure the Chinese Retrogression in the future:
- Derivatives being taken out of the current quota;
- Allowing for the roll over of unused visas from previous years;
- Eliminating the per country limit;
- Allowing for concurrent filings (early adjustments); or
- Allowing the EB-5 investor to parole to the U.S. after the approval of his/her I-526.
[1] Link to the DS-230
http://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=1&ved=0CB4QFjAA&url=http%3A%2F%2Fwww.state.gov%2Fdocuments%2Forganization%2F81807.pdf&ei=m08xVY6JNcGOyATAtoGQCA&usg=AFQjCNEhcdsHfNdB8DGwiGV31C9eZXwJPA&sig2=wuApWvEfVfcQVO4N9ZtEIw&bvm=bv.91071109,d.bGQ
