Help is on the Way for Mainland China EB-5 Investors Stuck in Immigrant Visa Backlogs!

China EB-5 Investor Backlog

Help is on the Way for Mainland China EB-5 Investors Stuck in Immigrant Visa Backlogs!

Effective October 1, 2015, individuals in both family-sponsored and employment-based visa categories affected by immigrant visa backlogs will be allowed to file their respective immigrant visa applications or adjustment of status applications for lawful permanent resident status (i.e. a green card) before their priority dates becomes current.

Currently, EB-5 investors from mainland China face backlogs, with a cut-off date of September 22, 2013 for both non-Regional Center (RC) and Regional Center (RC) investments.  Effective October 1, 2015, the Visa Bulletin will refer to two 2 cut-off dates for immigrant visa processing: (1) Application Final Action Dates, and (2) Dates for Filing Applications.

Going forward, the “Application Final Action Dates” will indicate the cut-off date for the adjudication of adjustment of status and immigrant visa applications based on petitions bearing a priority date (PD), or filing receipt date, before the cut-off date for that month.  The new, second category, “Dates for Filing Applications,” will indicate the date prior to the “Final Action Date” on which an applicant may file adjustment of status applications and immigrant visa applications. Although such applications will not be adjudicated until a beneficiary’s priority date (PD) is current (i.e. reflects receipt of a filed petitions before the “Final Action Date”), this is an extremely significant development.

Beginning October 1, 2015, EB-5 petitioners having a priority date before May 1, 2015 may file their adjustment of status applications. This new, streamlined procedure offers investors access to the ancillary benefits that accompany the filing of I-485 adjustment of status applications, including the ability to obtain unrestricted employment authorization (an EAD card) from USCIS, through the filing of an I-765 application, and advance parole for travel, through the filing of an I-131 application. Currently, USCIS issues a combined authorization card, which includes both of these employment and travel benefits.

The inclusion of a second cut-off date is particularly important in cases where the principal applicant has an unmarried child close to age 21, who might otherwise “age-out” of eligibility to receive permanent resident status with the family. Notwithstanding the October 8, 2013 Final Action Date in the EB-5 category, however, a Chinese parent having a priority date before May 1, 2015 will be able to apply for a green card, thus triggering the Child Status Protection Act (CSPA), which protects such children by freezing their age at the time of filing an application for an immigrant visa or adjustment of status..

This is exceptionally refreshing and welcome news for approved EB-5 investors from mainland China, who currently reside in the U.S. on valid, temporary visas and are in compliance with the terms of their respective visa statuses.  Hopefully, recognition of the valuable role played by EB-5 investors portends a positive outcome for the EB-5 legislation now pending before Congress.

It is important for readers to understand that while the October 2015 Visa Bulletin shows a cut-off date of October 08, 2013 for a non-Regional Center immigrant, the RC category remains unavailable (as denoted by a “U”). The RC based category for Chinese nationals is currently unavailable because it is subject to pending legislation for extension (or permanent reauthorization) in the  EB-5 program which must be acted upon by Congress on or before September 30, 2015.

A review of the October 2015 Visa Bulletin shows that the “All other Countries” EB-5 immigrant visa categories remain current. In other words, citizens and nationals from countries other than mainland China, may file their immigrant visa applications (I-526 petitions).


About the Authors:

Rebecca S. Singh, Esq.: As an advanced EB-5 practitioner with Mona Shah & Associates, Rebecca works with project developers, analyzing, crafting and preparing project documents for initial regional center designations.  In addition, Rebecca handles direct EB-5 project petitions, and is well versed in USCIS compliance.Rebecca is highly proficient at investor petitions, counseling clients through all stages of the EB-5 Immigrant Investment Program.  She has successfully filed complex source of funds issues from clients worldwide.Further, Rebecca is well-versed in consular affairs and adjustment of status cases, handling issues such as consular waivers, problematic “Age Out” issues, international adoption law, and non-immigrant and immigrant visa applications. Rebecca is admitted to practice law in the State of New York and before the United States District Court for the Southern District of New York.

Peta-Gaye Ricketts, Esq. is an experienced attorney at Mona Shah & Associates, PLLC. Her EB-5 practice and experience include representing high net-worth foreign investors worldwide on complex source and path of EB-5 funds issues before USCIS; preparing amendment filings and filing exemplar petitions; counseling foreign nationals on obtaining green cards through either individual or Regional Center (RC)  EB-5 investments, as well as issues related to I-829 Removal of Conditions; working with developers across a variety of industries; and counseling both  EB-5 investors and RCs on due diligence and compliance matters.

Lory D. Rosenberg, Esq. : Lory is presently is an attorney entrepreneur and owner of IDEAS Consultation & Coaching, LLC, an expert consulting and mentoring practice in immigration & refugee law.  She has extensive experience of over 30 years.  Lory served as an appellate immigration judge on the United States Department of Justice Board of Immigration Appeals (BIA) between 1995-2002, deciding over 20,000 appeals. Lory was also was an adjunct professor of immigration and refugee law at American University Washington College of Law, and recently served as interim Policy and Advocacy Director of Refugee and Migrant Rights at Amnesty International USA.  She directed groundbreaking, non-profit immigration law,  policy and mentoring programs at the Defending Immigrants Partnership and AILF Legal Action Center in Washington, D.C., and at Centro Presente, a Central American refugee center in Cambridge, MA, and provided direct business, professional and family immigration,   and naturalization representation, as well as criminal removal defense and appeal services, to private and non-profit clients.  Ms. Rosenberg is co-author of the leading treatise, Immigration Law and Crimes, the author of numerous articles and manuals on a variety of immigration law topics, and was a featured columnist for Benders Immigration Bulletin between 2002-2008.