October 2015 Visa and EB-5 Bulletin – ALERT
The October 2015 Visa Bulletin includes some important changes and information. Firstly, visa numbers in connection with approved EB-5 Regional Center Pilot Programs I-526 petitions are marked as unavailable across all countries. The Visa Bulletin notes that this unavailability is due to the fact that the EB-5 Pilot Programs have not yet been renewed by Congress. The Bulletin instructs further that upon program renewal of the programs, the availability of visas will revert to ‘current’ – with no backlog – for all countries with the exception of Mainland China. The cutoff date for Mainland China has moved ahead one month to October 8, 2013. Of note is the fact that this is the first time that the U.S. Department of State has set the visa numbers for the EB-5 Regional Center Pilot Program as unavailable renewals of the program by Congress – in the prior years, separate guidance was issued providing information regarding program renewal.
Another important development is that, in lieu of the current system which contains one set of cutoff dates, the Department of State has created two separate categories of cut-off dates, and both of these categories will be referenced in each monthly Visa Bulletin, including the one for October 2015. The first category is “final action” – the purpose of which is to indicate the cutoff dates based on which Applications for Adjustment of Status and immigrant visa applications would be adjudicated. The second – “filing” – category governs the cutoff dates allowing the filing of Applications for Adjustment of Status. This extraordinary new development would allow for the filing adjustment of status applications by approved EB-5 investors who are in the U.S. in valid temporary visa status, provided that their priority date is before cutoff date as indicated for the “filing” category. Even though the applications will not be adjudicated until the “final action” priority date becomes current, once they are filed, the foreign nationals would be eligible for the secondary benefits available to adjustment of status applicants, including employment authorization documents and advance parole. Please note that while the “final action” categories currently shows the EB-5 pilot program visa numbers as unavailable, pending program extension by Congress, the “filing” category shows priority dates as current for all countries other than Mainland China, which shows the cutoff date of May 1, 2015).