From the Desk of an
EB-5 Lawyer
by David Hirson
In each issue of EB5 Investors Magazine, editorial
board member David Hirson addresses developments
in the EB-5 arena. With a mix of observation and
analysis, attorney Hirson keeps readers up-to-date
with all things EB-5. Here are some updates from
the first two quarters of 2014.
The EB-5 world experienced many events in these first two quarters of 2014. From Canada’s
elimination of its immigrant investor and entrepreneur program to culminating discussions that
China would reach its visa cap this 2014 fiscal year, these past six months have proven to be very
busy. Additionally, USCIS-published data shows that an astounding 6,346 I-526 petitions were
received, with 3,699 approved. To date, this is the highest number that the program has ever
experienced and is indicative of its continuing viability.
Possibility of visa retrogression in China
Since the program’s inception in 1990, this employment-based
preference has been allotted 10,000 annual visas. Although
actual usage of EB-5 visas has never previously reached the
allotment of 10,000 visas, the State Department has issued
a preliminary warning that a cut-off date might need to be
established for China’s EB-5 category at some point during this
2014 fiscal year.
If there is a quota backlog for China, Chinese investors will
still be able to invest and file their I-526 applications. However,
the issuance of the conditional immigrant visa following the
successful completion of the consular interview or adjustment
of status application will not occur until there is a quota number available for the investor. Such a quota backlog would likely
delay Chinese foreign nationals with approved I-526 petitions
from entering the United States and obtaining conditional
permanent residency. Children who are derivative beneficiaries
of the I-526 petition could “age out” if the I-526 petition is
approved but there are no EB-5 visas available, as they are no
longer accorded protection under the Child Status Protection
Act once the I-526 petition is approved.
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This has created a lot of discussion and anxiety amongst
Chinese foreign nationals. Although the comprehensive immigration bill that passed the U.S. Senate would have avoided
the quota backlog by removing family members from the EB-5
quota, to date, the bill remains floating in the House. Filing
immigrant petitions and concluding cases to finality as soon
as possible is important for immigrant visa applicants with
potential age-out derivatives.
Canada eliminates investor program
In February 2014, Canada announced the elimination of its
decades-old federal investor programs. All 65,000 applications
that were pending would be returned and refunded fees paid.
Canada’s cancellation of its immigrant investor program has
resulted in many foreign national applicants looking elsewhere
to immigrate, with a key alternative being the EB-5 program.
E B 5 I n v e s to r s M ag a z i n e