The EB-5 Program Is Alive And Well

By Andy Semotiuk | April 20, 2015

The EB-5 Program is still alive and Working

Andy

US and Canadian Immigration Lawyer Andy SemotiukThere has been some consternation recently in the immigration realm regarding the availability of 2015 EB-5 visas, stemming from a recent article entitled U.S. Runs Out of Investor Visas Again as Chinese Flood Program.

 

Not quite.

Every fiscal year – October 1st to September 31st – the U.S. Congress sets yearly limits on the number of immigrants worldwide that can come to the United States. In addition, every fiscal year those yearly limits – about one million per annum – are then broken down by category and by country.
A very rough estimate for yearly immigration from China is about 25,000 for all categories of immigrants combined, such as family class, employment categories, and the EB-5 category. So out of the 25,000 yearly allocation, there may be, say, 5,000 spots allocated to Chinese EB-5 applicants per year.
On top of these considerations is the fact that government limits the number of visas for the entire globe. In the case of the EB-5 visa, the government allows 10,000 EB-5 visa applicants worldwide.
In effect, a limit can be reached both by the number of applicants from a country like China – 5,000 EB-5 applicants maximum – as well as by the total number of applicants for any particular category of immigrants globally, like the 10,000 for EB-5 investors.Visa Retrogression
All of these quotas and numbers are tracked by the U.S. State Department Visa Bulletin. It advises whether a category of immigration is current or whether there is a retrogression:

Visa retrogression occurs when more people apply for a visa in a particular category or country than there are visas available for that month. Retrogression typically occurs toward the end of the fiscal year as visa issuance approaches the annual category, or per-country limitations. Sometimes a priority date that meets the cut-off date one month will not meet the cut-off date the next month. When the new fiscal year begins on October 1, a new supply of visas is made available and usually, but not always, returns the dates to where they were before retrogression. 

What this means is that applications for immigration are not halted when a quota for a country like China is reached. Those Chinese who are applying now are simply being backed up and they will have to wait for openings in future years before their applications can be processed.
So, for example, on October 1st, 2015, a new one million immigrant quota will open in the U.S. and 25,000 openings will again be allocated to China. Around 5,000 will be for EB-5 investor immigrants. The first 5,000 Chinese EB-5 investor applicants in the backlogged line up will now be able to have their applications processed. Meanwhile, the 5001st Chinese EB-5 investor applicant will have to wait until October 1st, 2016 before his or her application will be considered. New applicants are simply added to the back of the lineup.
That is retrogression in action. For Chinese investors, the delays are not fatal to their hopes for an EB-5, but they are bad news. Someday, they may still qualify, but not now because their category in the Visa Bulletin is not current.
For investors from other countries, there is no danger. As it stands now, there are not nearly enough applicants to meet the EB-5 quotas allocated to other countries.


Andy Semotiuk is a Canadian and US immigration lawyer with immigration law firm Pace Immigration. You can learn more about Andy at My Work Visa.