VISA BACKLOG
IN EB-5
PROGRAM
RESULTS IN
IMMIGRATION
RISKS
By Daniel B. Lundy
T
his problem is ironically exacerbated by the extraor-
period of two years, after which he or she would have to file
dinary success of the EB-5 program over the last sev-
a petition to remove the conditions with evidence that he
eral years. After many years of underutilization, the EB-5
or she was still married to the U.S. citizen (or if divorced, the
visa category, at least for natives of China, is suddenly
breakup was through no fault of his or her own). However,
oversubscribed as a result of overwhelming investor de-
the Marriage Fraud Amendments also provide that an alien
mand. The approximately 10,000 visa per year cap was
married to a U.S. citizen for more than two years at the time
hit for the first time at the end of fiscal year 2014, and
of becoming a permanent resident is granted uncondition-
hit again, with force, early in 2015. The result is a visa
al permanent residence, and does not have to file a subse-
availability cutoff date of February 15, 2014 for natives
quent petition to prove that the marriage still exists (or was
of China.
terminated through no fault of his or her own). These provisions were intended to deter and detect marriage fraud in
While a backlog of a mere two years and five months
immigration petitions based on marriage to a U.S. citizen.
doesn’t seem that bad, industry commentators paint
a far bleaker picture. An investor from China who
An investor first files an I-526 petition to demonstrate that
invests and files an I-526 petition today faces a pro-
the requisite funds have been invested and at least 10 jobs
It is important to note that whether an investor gets an
longed and unknown waiting period before he or
for U.S. workers per investor have or will be created within
EB-5 visa or adjusts status in the U.S., the investor (and his
Amid a visa backlog lasting up to
she can obtain conditional permanent residence.
the two-and-a-half-year period following the approval of
or her family members) is being given a visa number. Visa
six years or more and uncertainty
Estimates of this waiting period vary, but most in
the I-526 petition. Once approved, the investor gets an
numbers are allocated on the basis of priority date—i.e.
regarding USCIS policy, EB-5
the industry expect that an investor will have to
EB-5 visa and enters the country (or adjusts status) and be-
the date of filing the I-526 petition. It does not matter that
investors face the risk that after
wait four or more years after the approval of his
comes a conditional permanent resident. Between 21 and
an investor who adjusts status technically never obtains an
relocating to the United States
or her I-526 petitio