25 years of the EB-5 program, there was, by everyone’s
count, more than enough visas to immediately
accommodate every EB-5 investor. As a consequence,
there was no backlog for the EB-5 visa category.
of EB-5 visas is supposed to be used for investors who
contribute capital to job - creating U.S. businesses.
Statements from members of Congress when the law
establishing EB-5 was passed in 1990 bear this out. These
members of Congress stated that
t h e n ew p r o g r a m wo u l d c r e a te
100,000 new jobs and bring in up to
$10 billion for U.S. businesses each
year – numbers which correspond to
the immigration of 10,000 investors
annually. Under the law as written,
the spouses and children of investors
also qualify for U.S. residency by
virtue of their relationship to an EB-5
investor. But, crucially, they obtain
their immigration status under a
different section of the law – a section that is not subject to
any numerical limits.
"This counting
policy results in the
government making far
fewer visas available to
EB-5 investors than the
law provides"
That all changed in May 2015, when
the U.S. State Department determined
for the first time that demand for EB-5
visas exceeded the annual supply. In
order to balance supply and demand
for EB - 5 visas , the gove rnme nt
imposed a visa “cut-off” date. Only
investors whose I-526 petition was
filed before the cut-off date could
immigrate to the U.S. Because of
special “per-country” limits impacting
countries with a disproportionate share of applicants in any
given visa category, the EB-5 visa backlogs currently affect
only nationals of China and Vietnam – the two countries with
the largest share of EB-5 applicants—but are likely to affect
other countries, such as India, in the future.
HOW THE GOVERNMENT’S
WRONGHEADED “COUNTING POLICY”
CREATED THE BACKLOG
According to the recent lawsuit, the U.S. government has
made a fundamental error in the way it counts EB-5 visas.
Under the plain language of the law, the annual allotment
Despite this framework, the government treats the spouses
and children of investors as if they were investors themselves,
and thus counts them against the annual EB-5 visa quota.
Under this misguided “counting policy,” for instance, an EB-5
investor who immigrates to the U.S. with her spouse and two
children would use four EB-5 visas instead of only one. This
counting policy results in the government making far fewer
visas available to EB-5 investors than the law provides. In fact,
as a result of the government’s mistaken counting policy, only
about one-third of EB-5 visas have been made available to
investors since the backlog began.
EB5INVESTORS.COM
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