The Impact Of EB-5 Visa Retrogression

Chinese nationals hoping to enter America through the EB-5 investor visa program now face a very long wait due to retrogression.

Chinese nationals hoping to come to America through the EB-5 investor visa program will now find themselves waiting in a very long line as a policy of “retrogression” has been instituted. This is despite the fact that EB-5 investors have preserved or created hundreds of jobs over the years and contributed a whopping $2 billion to the American economy in 2012 alone (according to White House data).

What is the EB-5 program?

Essentially, the United States government, through authority granted by the Immigration and Nationality Act, sets aside a certain number of visas annually for employment-related purposes, to be divided between different visa categories (EB-1, EB-2, EB-3, E-1, E-2, etc.). Of the employment-based visas available, only 7.1 percent of them are directly allotted to the EB-5 investor visa program, and any one country can only receive 7 percent of those, with additional visas being optional for some if there were “leftovers” from other countries that didn’t have sufficient applicants to meet their allotment.

The EB-5 visa program was once little used, but that has turned around since 2008; the program has grown in popularity exponentially since then. With the growth of the Chinese economy in recent years, the ability of that country’s citizens to branch out and invest in American businesses has likewise increased. In fact, Chinese nationals have represented 80 percent of EB-5 investor visas for several years, and that number was expected to grow in 2015.

What is retrogression?

In October of 2014, Charles Oppenheim (Chief of the Visa Control and Reporting Division of the U.S. Department of State) announced that the EB-5 program would undergo dramatic changes as of May 2015. The most significant of these would be to “retrogress” the EB-5 China visa category two years. This means that applicants whose applications have a priority date on or before May 1, 2013, would be considered for the foreseeable future. Applications with a priority date after then would only be evaluated once all the prior ones were completed.

Possible congressional intervention?

Back in January, Congressmen Jared Polis (D-Colorado) and Mark Amodei (R-Nevada) introduced House Bill 616: American Entrepreneurship and Investment Act of 2015. The bill would, if passed, do away with the need for retrogression of Chinese investor applications by more than doubling the cap to which individual countries wishing to take advantage of the EB-5 visa program are subjected (increasing it from 7 percent of employment-based visas to 15 percent).

H.R. 616 would also change the way in which spouses, children and other so-called “derivatives” are treated for purposes of the visa cap. Currently, investors are viewed alongside their dependents for visa purposes, thus limiting the number of investors who can take advantage of the program. The bill contains language that clarifies the role of investors versus derivatives when calculating visa totals, thus opening the door for more potential investment in American enterprises.

Unfortunately, H.R. 616 has languished in committee since January. According to GovTrack.US, it has a “0 percent chance of being enacted” into law anytime soon.

What does the retrogression mean for potential EB-5 applicants?

Retrogression could have a serious “chilling effect” on Chinese nationals interested in investing in domestic companies as a way to come to America. Unless applicants have a priority date of May 1, 2013 or before, their applications will be in legal limbo for a currently indeterminate time. This doesn’t necessarily mean that all immigration avenues are closed to these people, however. For more information about whether a different visa category might be an option, seek the advice of an experienced immigration law attorney.

To learn more or to speak to a lawyer, contact C.T. Lee & Associates, in New York City by calling 800-494-3809.

Keywords: EB-5 visa, investor visa, immigration, immigration law, immigrant, retrogression