Strategies for
Dealing with
Retrogression
by Kate Kalmykov
EB-5 immigrant visa retrogression does not have to be the
end of the conversation for Chinese investors. There are a few
avenues EB-5 investors may explore to deal with the impending
EB-5 immigrant visa retrogression, including cross-chargeability, applicant choice, country of birth, and legislative or
executive relief.
Cross-chargeability
EB-5 investors with an approved I-526 petition are “chargeable” to the country in which they were born, with certain
limited exceptions. Accordingly, the country of birth of an EB-5
investor normally determines the availability of his or her visa.
However, one of the limited exceptions allows an EB-5 investor
to be “chargeable” to the country in which his or her spouse was
born. This is known as “cross-chargeability.” For example, if the
principal applicant (the EB-5 inv estor) was born in mainland
China, but his or her spouse was born in Hong Kong, the
principal applicant born in mainland China may be charged
to his or her spouse’s country of chargeability (Hong Kong)
if the EB-5 priority date is not current for mainland China.4
Chargeability is considered at the time of consular processing
or adjustment of status.
Applicant choice
A “child” is defined in the Immigration Nationality Act as an
individual who is unmarried and under the age of 21.5 Once a
child reaches the age of 21, he or she is no longer eligible for
immigration benefits based on the relationship to the parent, a
problem known as “aging out” (see What EB-5 Investors Need
to Know About the CSPA in this feature for more information).
Accordingly, a prospective EB-5 investor with an unmarried
child under the age of 21 should consider making his or her
child the principal applicant (the EB-5 investor). If the EB-5
immigrant visa category does retrogress to the anticipated
July 2013 cut-off date, any prospective EB-5 investor with an
unmarried child over the age of 18 should seriously consider
making his or her child the principal applicant (the EB-5 investor). This procedure would only be appropriate for a family
whose primary goal in applying for an EB-5 visa is to receive a
green card for their child. The child could eventually sponsor
their parents, but only after the child obtains U.S. citizenship.
4
5
See 9 FAM 42.12
See INA Sec. 101(b)(1)
48
Country of birth
Oftentimes, individuals tend to forget that the U.S. government has separate visa categories for Hong Kong, Taiwan and
Macau. Accordingly, an EB-5 investor, who may hold citizenship
of mainland China (the People’s Republic of China) but was
born in the Hong Kong Special Administrative Region of the
People’s Republic of China, will not be affected by retrogression
of the EB-5 immigrant visa category for those born in mainland
China. The same applies for individuals born in the Republic of
China (Taiwan) and the Macau Special Administrative Region
of the People’s Republic of China.
Legislative or Executive Relief
On May 14, 2014, Aaron Schock (R-IL) and Tulsi Gabbard
(D-HI) introduced H.R. 4659, which would have eliminated
the per country quotas in the EB-5 category. This bill continues
the trend of EB-5 related legislation, which, if enacted, would
likely provide relief from retrogression of the EB-5 immigrant
visa category. The American Entrepreneurship and Investment
Act of 2014, introduced by Jared Polis (D-CO), along with
Joe Garcia (D-FL), Matt Salmon (R-AZ) and Mark Amodei
(R-NV), would also eliminate the per country quotas in the
EB-5 category and remove derivative beneficiaries (spouse and
unmarried children under the age of 21) of an I-526 petition
from counting toward the 10,000 EB-5 visa cap. If any of these
solutions are implemented, we may see relief from retrogression
of the EB-5 immigrant visa category.
Some of these strategies will not be available to every EB-5 investor. However, prospective EB-5 investors and EB-5 developers should be well versed in these various aspects of immigration
law. As an EB-5 developer, thorough knowledge of these various
aspects may prove to be essential to securing an investment from
a prospective EB-5 investor.
★
Kate Kalmykov
EB5 INVESTORS MAGAZINE
Kate Kalmykov is a shareholder at the NYCarea offices of Greenberg Traurig, LLP. Kate
handles a range of immigration cases, but is
particularly involved in the firm’s EB-5 practice,
where she works with investors, regional centers
and developers. In addition to providing a full
scope of legal services for
EB-5 participants, Kate is a
respected speaker and regularly
blogs on EB-5 issues. She is a
founding member of the EB-5
Immigration Coalition.