(Source: Wolfsdorf Rosenthal) On April 23, 2018, Mr. Charlie Oppenheim, Chief, Immigrant
Visa Control and Reporting, Department of State (“DOS”) spoke at an EB-5
Industry Conference regarding visa waiting lines for EB-5 investors. He
indicated that applicants chargeable to mainland China and Vietnam now face
visa backlogs for the foreseeable future, and that visa backlogs for nationals
of India, Brazil, South Korea, and Taiwan are expected by the summer of 2019.
Mr. Oppenheim’s estimates, as he always carefully indicates,
are based on the “best available information.” He also bases his
estimates on “known facts” and not what could happen in the future. When
predicting beyond what is clearly visible, Mr. Oppenheim cannot and does not
speculate based on legislative, administrative, or other factors and variables
which often impact the waiting lines. For this reason, Mr. Oppenheim must
frequently revise these estimates. Therefore, this information, while helpful for
some planning, cannot be quoted as fact unless published in the Visa
Bulletin. Additionally, these estimates do not consider other factors
such as the big four “D’s” – denial, dropout, death and divorce – which
affect waiting lines.
Confusion over the detailed aspects of this technical area
of U.S. immigration law is common. Numerous variables influence the
length of EB-5 visa waiting lines, and attorneys should be sure the investor
client understands that many variables are involved making predictions impossible.
Nevertheless, it is important immigration attorneys attempt to keep themselves
up-to-date in this highly complex area. It is also critical to plan
ahead regarding the interaction between non-immigrant visa status and the EB-5
application to ensure complications do not occur.
Here are seven new things to know about EB-5 visa waiting
lines:
1. Mainland China. Oppenheim stated that cases
filed in April 2018 could take “about 15 years” before a visa would become
available for a mainland Chinese born applicant. The USCIS Ombudsman estimated
in its 2017
Annual Report that an EB-5 investor from China may need to wait 10
years to obtain a visa to enter the U.S., though reform to the EB-5 program can
and hopefully will modify this. Mr. Oppenheim explained, “that if a China applicant were to
file a new EB-5 petition that day [i.e. April 23, 2018] the applicant would
have a 15 year wait before their priority date would be reached for visa
issuance.” Mr. Oppenheim indicated, however, that there “might [be] a different
way to calculate the wait time for a newly filed petition.” Furthermore, he
emphasized, “[t]he important thing for applicants to remember is that if they
already have an approved/filed petition, their wait time could be much less
than either of our estimates.”
Accordingly, the fuller context of Mr. Oppenheim’s remarks
shows that the referenced 15-year wait might apply to cases filed in April 2018
but not apply to cases filed before that time. Indeed, the wait time
could be much less for approved cases. Furthermore, Mr. Oppenheim indicated
that his estimate assumes that only 2,000 EB-5 visas would be issued to Chinese
nationals in a fiscal year. Data for the first three quarters of FY2018
(October 2017-June 2018) shows over 4,049 EB-5 visas were issued to Mainland
Chinese nationals this year, taking a bigger bite out of the visa wait line for
Chinese applicants than estimated. Nevertheless, as demand for EB-5 visas from outside China –
the rest of the world (“ROW”) – grows, every visa issued to a ROW applicant
(excluding those nationals with their own EB-5 visa backlogs, like Vietnam
right now) is one less visa that can be issued to a Chinese applicant.
Mr. Oppenheim estimates that the number of visas issued to Chinese applicants
will gradually decrease to a maximum of 3,500 EB-5 visas in FY 2019, and 3,000
EB-5 visas in FY2020. It’s possible that Mr. Oppenheim’s estimates
regarding the Mainland Chinese EB-5 waiting line will increase as additional
data about ROW EB-5 applicants comes to light. As a result, the anticipated China EB-5 Final Action Date in
October 2018 will be, “August 8 or 15, 2014.”
2. Vietnam. Oppenheim confirmed that the EB-5 Final
Action Date for Vietnam will advance to January 1, 2016 when FY 2019 begins on
October 1, 2018. However, Mr. Oppenheim anticipates that the entire 7% of
EB-5 visas allocated to Vietnamese nationals will be allocated by the spring of
2019, likely earlier in the year than May, when the cap was reached in
2018. At this point, the Final Action Date for Vietnam EB-5 applicants
will match that of Mainland China EB-5 applicants, as occurred in May
2018. Industry data suggests that Q2 of FY 2018 is the first time in
which Vietnamese EB-5 investment outpaced Chinese EB-5 investment, and the
industry will likely continue to see high demand from Vietnam.
3. India. 375 EB-5 visas have been issued to
Indian nationals from October 2017 to June 2018. Yet industry data and
anecdotal evidence confirms that Indian EB-5 investment has increased
significantly over the past year. Moreover, demand from Indian nationals in
EB-5 remains high because of the extremely long visa backlogs for other
employment-based categories like EB-2 and EB-3. Oppenheim anticipates a final
action date for India EB-5 “no later than June 2019” and likely earlier.
4. South Korea. 423 EB-5 visas have been issued to
South Korean nationals from October 2017 to June 2018. As a result, “[a]t some
point during the summer of 2019” it may be necessary to establish a Final
Action Date and that will likely be the same as the China Final Action Date.
5. Taiwan. 335 EB-5 visas have been issued to Taiwanese
nationals from October 2017 to June 2018. Mr. Oppenheim predicts that
“possibly” Taiwan may have a Final Action Date, “[a]t some point during the
summer of 2019.”
6. Brazil. In addition to the above-mentioned
countries, currently Brazil “is the only other one where number use raises
availability concerns for FY-2019” and may also see a Final Action Date at some
point during the summer of 2019. Although Hong Kong was previously on the
list of countries to possibly have a backlog, it appears there is no imminent
danger of a Final Action Date being established. All other countries are
expected to remain current.
7. Self-Fulfilling Prophecy? Oppenheim predicted a
China Final Action Date “during the summer of 2015” which became reality in May
2015. For Vietnam he predicted a Final Action Date starting in April 2018,
which became reality in May 2018. Because Mr. Oppenheim has pointed out
that his public comments are “likely to guarantee that they will occur, and
most likely earlier than expected,” countries with high EB-5 demand should
expect a Final Action Date sooner rather than later. Additionally, EB-5 investors and their legal counsel must now factor in
both long adjudication and visa waiting lines. These factors increase the risk
of the investment term being much longer than anticipated, and the possibility
of age-out and family separation become real.
