What Every Chinese EB-5 Applicant and Agent Need to Know About Retrogression
Each month, the Department of State (DOS) issues a visa bulletin which contains information regarding the availability of immigrant visas. The availability of immigrant visas is subject to numerical caps imposed by Congress, which limit how many foreign nationals may obtain immigrant visas each year. In the employment based green card category Congress allots 140,000 immigrant visas (green cards) to be issued annually. The employment-based categories are subdivided into five preference categories:
EB-1: Priority Workers (Extraordinary Ability, Outstanding Professors and Researchers, and Multinational Managers or Executives)
EB-2: Professionals Holding Advanced Degrees and Persons of Exceptional Ability
EB-3: Skilled Workers, Professionals, and Unskilled Workers
EB-4: Certain Special Immigrants including Religious Workers
EB-5: Immigrant Investors
No one country in each of the five categories is allowed to exceed more than 7 percent of the category per the requirement of 8 U.S. Code § 1153.
The employment-based fifth preference category “EB-5” is allotted 10,000 immigrant visas annually. The 10,000 quota includes principal applicants, as well as spouses and dependent children under 21 years of age. The visas are issued from October 1st (the first date of the government’s fiscal year) until September 30th. On October 1st of each year, the quota of visas is reset.
In order to deal with these numerical limits, sometimes the DOS has to establish a wait line that determines the order in which immigrant visas are issued when the annual quota is exhausted in a particular year. The DOS uses an applicant’s “priority date” to determine when an applicant can apply for an immigrant visa or file an adjustment of status in the U.S. An applicant’s priority date is based upon the day their I-526 petition was received by the United States Citizenship and Immigration Service (USCIS). As you can see from the below example, the priority date is listed on the top of an investor’s I-526 approval notice.
In this example, our applicant has a priority date of Aug. 20, 2014. The applicant then must check the DOS visa bulletin to find out if his or her priority date is current. If the visa bulletin, lists the priority date as current represented by a letter “C” then the applicant can apply for a green card either through immigrant visa Consular Processing at the U.S. Embassy in their home country or through the filing of an I-485, Application for Adjustment of Status with the USCIS in the United States upon the approval of their I-526 petition. An applicant that applies for the green card in the United States through Adjustment of Status, must be in valid non-immigrant visa status to do so. As part of the Adjustment of Status filing, the U.S. based applicant, as well as their dependent applicants, are entitled to receive work authorization through the issuance of an Employment Authorization Document (EAD) , as well as travel authorization known as Advance Parole (AP).
In addition to checking if a category is current, the applicant must also ensure that they are not born in a country which has exceeded the 7 percent allotment for immigrant visas for the particular fiscal year. If their country of birth is a country that has exceeded its yearly allotment then a wait line for the filing the green card application develops, known as retrogression. When retrogression of priority dates occurs, then it is important for an applicant to check to see if they can file their green card application after their EB-5 petition is approved by checking the visa bulletin on a monthly basis. If a date is listed on the visa bulletin, an applicant can only file their application if their priority date is on or before the date listed on the visa bulletin. If the priority date is later than the date listed on the visa bulletin, the applicant will have to check back the following month when the DOS issues its next visa bulletin to see if their priority date has become current (i.e. if the priority date is now earlier than the date listed on the visa bulletin). The dates in the visa bulletin will either move forward, back or even stay stagnant and such changes will be reported monthly. These movements in the visa bulletin are based on the number of green card applications received during the previous month and the available spots remaining in the category. Likewise, sometimes the category can move forward if the other EB categories are underutilized because DOS then reallocates their numbers to the categories with backlogs. For example, if the EB-1 category is not used, EB-5 may benefit from a partial reallocation of the unused immigrant visa numbers.
At present the EB-5 visa category is current. However, the DOS has informed EB-5 stakeholders that in June of 2015 they expect the priority dates to retrogress to at least two years to May of 2013. Using the approval notice above and a sample visa bulletin based on this information pasted below, we consider how to read the visa bulletin for an applicant born in mainland China with an EB-5 priority date of August 20, 2014. The applicant will not be able to file their green card application because the EB-5 category is not current and in fact it is estimated that it will be at least a year until their priority date will become current. For newer EB-5 applicants, based on pending estimates, it would appear that when Chinese retrogression occurs later this year most applicants will have at least a two year wait before they can file for their green cards.
Likewise, if the total number of visas has been used up in a particular year, in a particular category the visa bulletin will note that the category is unavailable, which is represented by a “U.” This can occur when the DOS determines no more immigrant visas can be issued at the present time. See the EB-4 category above for mainland China for a representation of how this appears.
While China is expected to retrogress, other countries using the EB-5 visa will stay current and be able to precede with their green card applications upon I-526 petition approval. Those born in Hong Kong, Taiwan and Macau will not be subject to retrogression as it only extends to Mainland born Chinese. Likewise, if someone is applying with their spouse and the spouse is born in a non-PRC country, the Chinese born spouse can “charge” their nationality to their spouse and proceed with the green card application based on that non-Chinese nationality.
While retrogression is a new development for many Chinese EB-5 applicants, the EB-2 and EB-3 categories for Chinese nationals have been backlogged between 5-10 years for quite some time. In this sense, EB-5 is still a more expeditious way to obtain a green card while also permitting investors flexibility in terms of being dependent on an employer in their immigration petition.
In the case of retrogression, for those applicants applying from the U.S., though they may not process for the green card until the priority date is current, there is some relief that they can avail themselves of if they file their Adjustment of Status application before retrogression is effective. First, they can continue to remain in the U.S. indefinitely as “Adjustment of Status” applicants without maintaining an underlying non-immigrant visa status. They will also be able to annually renew their EAD and AP to permit them to work and travel until their green card applications are adjudicated. If there is a movement in priority dates, they will have their petition already in queue for adjudication.
For applicants who apply for consular processing in the event of retrogression, the NVC and Consulates will hold the application until the priority dates become current. For children close to the age of 21, they may lose their ability to derive from their parent’s application depending on how long they are subject to retrogression. In this case, they may need to apply for the EB-5 immigrant investor visa on their own or seek an alternative path towards U.S. immigration. Likewise, individuals who spend a year or more in retrogression may also need to supplement their application at the time that their application becomes current with updated documentation such as new police certificates and medical examinations. Fortunately, for individuals who have submitted their DS-260 and documents to the consulate, and the consulate has scheduled them for an immigrant visa interview, those individuals immigrant visa applications would be processed for a green card since a visa number was allotted at the time the interview was scheduled. For those that cannot immediately process, the recent change in visa reciprocity allows Chinese nationals some relief in that they now can obtain a ten year multiple reentry visitor visa and will provide investors the ability to travel to the U.S. while their priority date is not current albeit on a temporary basis.