Understanding the EB-5 Visa Backlog Crisis – Episode 70

15 Nov Understanding the EB-5 Visa Backlog Crisis – Episode 70

The backlog numbers announced by Charlie Oppenheim at the AILA & IIUSA Conference have caused quite an uproar. In this episode, Mona, Mark and Rebecca are taking the time to discuss what the numbers really mean. They explain the cause of the current EB-5 visa backlogs and interpret Charlie’s estimates of the number of petitions on file. Listen in for insight around Charlie’s wait-time and Final Action Date predictions and learn about the potential remedies for dealing with the EB-5 backlog crisis.

 

 

At the recent AILA & IIUSA Conference in Chicago, Charlie Oppenheim, Chief of Immigrant Visa Control with the US State Department, released the latest numbers around EB-5 visa backlogs and made predictions with regard to wait times and Final Action Dates (FAD). Unfortunately, when these numbers are published without explanation, it is easy for investors to misunderstand the estimates and misinterpret the information provided.

 

Today, Mona, Mark, and Rebecca clear up the confusion, discussing the cause of the current backlogs and which countries are involved. They translate Charlie’s estimates of the number of petitions on file as well as his wait-time and FAD predictions, explaining the variables that impact the number of EB-5 visas available and the nuances of Adjustment of Status (AOS) applications. Listen in for insight on escaping visa backlogs by getting involved in an expedited project and learn about the current litigation challenging the State Department’s method of counting EB-5 visas.

 


The Cause of the Current Backlogs

  • There are only 10,000 EB-5 visas available. Every visa does not represent an entrepreneur, as dependents are included in that number.

 

  • At present, China and Vietnam are the only two countries in backlog. India is likely to join the list in July of 2019.

 

  • Each country gets an allowance of 700 visas but may receive more if visas go unused in other categories. For example, in 2018, 10,075 EB-5 visas were available.

 

  • If a particular country does not use all the visas available to them, the unused visas go to countries that have oversubscribed. Currently, all of the unused visas go to Chinese investors, as their priority dates are earlier than investors from other countries.

 

  • More countries are using their quotas than ever before. In 2017, China used 7,567 EB-5 visas, while the rest of the world used only 2,523. But in 2018, the rest of the world used 4,960, leaving only 4,624 EB-5 visas for Chinese investors and their dependents.

 

Charlie Oppenheim’s Wait-Time Predictions

  • At the recent AILA & IIUSA Conference in Chicago, US State Department Chief of Immigrant Visa Control Charlie Oppenheim offered some rough estimates with regard to potential backlogs. The following wait times are worst-case scenarios for people who file on or after October 30, 2018:
    • China 14 years
    • Vietnam 2 years
    • India 7 years
    • South Korea 2 years
    • Taiwan 7 years
    • Brazil 5 years

 

  • Right now, there is no backlog for India, South Korea, Taiwan or Brazil. The EB-5 visa allocation available to India is expected to run out in July 2019—but remember that new visas will come available a few months later in October 2019.

 

Charlie Oppenheim’s Estimates of the Number of Petitions on File

  • Charlie also revealed the estimated number of petitions on file with the National Visa Center (NVC) from 2014-2017. (These numbers reflect people who have had their I-526 approved and moved on to the next stage to either adjust OR go through consular processing.)
    • China 32,834
    • Vietnam 1,112
    • India 509
    • South Korea 359
    • Brazil 260
    • Taiwan 246

 

  • These numbers do not include Adjustment of Status (AOS) applications submitted by student, H-1B, L-1 or E-2 visa holders. But AOS application numbers are not anywhere near those of the DOS. For example, India has only 43 AOS applications pending compared to 509 with the consulate abroad.

 

  • Keep in mind that these are rough estimates that do not encompass all of the potential variables. For instance, deaths, age outs and withdrawals would decrease the numbers, while family ‘acquired’ or government action of some kind could increase the published totals.

 

Charlie Oppenheim’s Final Action Date Predictions

  • A Final Action Date (FAD) only comes into play if your country is currently in backlog. For instance, an Indian national who filed for EB-5 in January of 2017 and has been approved may apply for their green card straightaway.

 

  • India is likely to see backlog in July 2019, in which case the country will revert to China’s date. But remember that another 700 visas will come available for India in October, so the backlog is not likely to last long.

 

  • China and Vietnam do have FADs because both countries are currently in backlog. As of December 2018, Charlie predicted a FAD of August 22, 2014 for China and May 1, 2016 for Vietnam.

 

  • You are now allowed to file your consular processing petition with the NVC prior to your Final Action Date. Then once your FAD is current, you will be called in for an interview.

 

  • Concurrent filing is not available for EB-5 as of yet. Just because you have filed your I-526, that does not mean you can legally stay in the United States. You must have a non-immigrant visa.

 

Remedies for Dealing with the Backlog

  • Indian nationals may be able to escape the visa backlogs by filing in an expedited project. However, you need to take action now to get your interview before the backlog takes effect. If you wait to file until January or February, you will probably not get a visa interview in time.

 

  • Ira Kurzban’s law firm has filed a suit claiming that the State Department’s method of counting visas does not align with congressional intent. He argues that derivatives should not be counted in the 10,000 allotted visas.

 

  • If each of the 10,000 EB-5 visas truly represented an investor, this would create a minimum 100,000 jobs in the US and generate a revenue of up to $10 billion, according to Texas Representative Lamar Smith.

 

  • The litigation would also benefit aged out children. While your age is frozen when you file an application, once your I-526 is approved (but you’re in backlog), it starts to run again. If this case goes through, it would provide relief for the investors’ children who lost their visas as a result of aging out.

 

 

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