On August 23, 2014, the U.S. Department of State (DOS) announced that the EB-5 visa category for Chinese nationals will be unavailable in the upcoming September 2014 Visa Bulletin. Unavailability is due to the maximum number of EB-5 visas for Chinese nationals being reached for the U.S. fiscal year of 2014.
When U.S. fiscal year 2015 begins on October 1, 2014, the EB-5 visa category for Chinese nationals will become current and, therefore, immediately available again. According to visa usage trends, the DOS predicts that in May 2015 the category will retrogress to a priority date of June 2013.
In its recent announcement, the DOS explains that “USCIS offices may continue to accept and process China Employment Fifth preference cases and submit them in the normal manner. However, instead of being acted upon immediately, those cases will be held in the Visa Office's ‘Pending Demand’ file until October 1, 2014. At that time, all eligible cases will be automatically authorized from the ‘Pending Demand’ file under the FY-2015 annual numerical limitation.”
Under EB-5 visa retrogression, foreign nationals may continue to file I-526 petitions, but Chinese nationals will not be able to obtain conditional lawful permanent residence status until the EB-5 visa category for Chinese nationals is available. The underlying affect will create a much longer timeline for Chinese immigrant investors to become green card holders.
Suggestions, such as only counting the EB-5 visas that are issued to the principal investor rather than also counting the visas that are issued to the investor’s entire family, have been made to Congress and USCIS in order to free up more EB-5 visa numbers. However, it is estimated that newly proposed regulations, which may provide guidance on issues that arise as result of EB-5 visa retrogression, will not be written until the spring of 2015 and become final a year afterward in 2016. It is therefore recommended that Chinese nationals applying for an EB-5 visa do so as soon as it is feasible for their families, to avoid delays caused by potential future visa retrogression in the U.S. fiscal year of 2015.