How will the EB-5 visa cut-off for China affect I-526 processing?

Because the immigrant visa quota for China has been reached for this category for this fiscal year (which ends on September 30, 2014), any pending I-526 petitions that are approved will be able to proceed with consular processing of an immigrant visa abroad or adjust status in the United States (if lawfully in the US in another immigration status) after a short wait once the new fiscal year starts on October 1 and new visas become available. However, it is expected the immigrant visa numbers will retrogress sometime in May 2015, and there will be a waiting period for Chinese applicants with approved I-526 petitions to proceed with consular processing of their immigrant visas abroad or adjustment of status in the United States until their priority date becomes current.

I-526 processing and visa processing are two separate processes. I-526 petitions are processed by USCIS and currently take 13 months to review. When that is approved, the investor applies for a visa (or adjusts status, but a visa number needs to be available). The date the I-526 was filed determines the investor''s priority date, which now becomes very important, because a date that falls before the cut-off date can still get a visa, while those coming after the cut-off date needs to wait for the line to move up. Either way, retain immigration counsel to prepare you for the entire process (not just the I-526!).

The announcement regarding EB-5 visa numbers affects only immigrant visa issuance during the remainder of this fiscal year (FY2014), which ends on September 30, 2014. The larger issue is that the USCIS has over 10,000 pending I-526 petitions already in the queue. Each petition represents one or more applicants (principal investor, spouse and any children under 21). Therefore, it is likely that visa number retrogression will occur sometime in 2015 and a waiting period will become necessary. How long that waiting period will last is anyone''s guess.

Any applications filed after the cut off will be held until October 1, 2014, at which time it will recommence the processing. In practicality, at this juncture there is going to be limited impact that will be visible; however, this does not mean that there will be no impact in the future.

Each year (October 1 to September 30) there is a per country quota based on the overall cap of 10,000 visas allocated to this category. Since the quota for China has been reached for this year, the I-526 will still be approved, but the final stage cannot be filed until there is once again a visa available in the EB-5 China category. Since reaching the quota has occurred in the final month of the government''s year, the wait will not be very long and the final stage will be able to be submitted after October and continue until once again the quota is reached.

Chinese retrogression will not affect the filing of I-526 petitions. The filing of the I-526 petition will put the investor in the waiting line. As of May 2015, it will be determined that the waiting period for the Chinese investor will be 24 months. Only when the waiting period is over, then will the investor will be able to apply for conditional permanent residency.

It lasts a month before Chinese citizens can apply for visas again on October 1, 2014. But this is because the allotment or quota of 10,000 visas will replenish on this date. What will happen in the near future, according to the U.S. Department of State, is that next year around May 2015, the waiting time for Chinese citizens will retrogress two years.

Visa cut off for this year (federal fiscal year 2014) will last only a month until fiscal year 2015 starts. However, they expect the visa numbers to retrogress in April or May of next year and stay back-logged for two years or more as a best estimate from the State Department. This means if your I-526 is approved before the numbers retrogress, then you may get your immigrant visa application (DS-260) or Adjustment of Status application filed before it retrogresses. If not, you will have to wait until it opens up again. Please note that because the Guangzhou consulate handles so many cases, it is one of the slowest posts for getting an interview scheduled. If the interview is not scheduled before visa numbers retrogress, your application will be held by the post until it opens again. Thus, realistically, if your I-526 is not approved within the next couple of months, the chances are that you may not get your interview done by next May.

If the I-526 was filed before 1/1/2013, it should not have an adverse effect, per Charlie Oppenheim from the State Department.

The cut-off date will only affect consular processing of cases, not the processing of I-526 petitions, or of I-829 petitions. Typically, when priority dates get CLOSE to current, then the National Visa Center will begin the consular process.