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What would be the impact of the Fairness for High-Skilled Immigrants Act (H.R. 392) on the EB-5 Immigrant Investor Program?

This bill will eliminate the per country limitation for employment-based immigrants. If enacted, how will this new legislation affect EB-5 applications?

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    Fredrick W Voigtmann

    Immigration Attorney
    Answered on

    Eliminating the per country limitation likely would make all countries "current" for immigrant visa numbers. Increasing the number of available EB-5 immigrant visa numbers or changing the way they are currently allocated from one visa number per person to one visa number per investor would have an even more dramatic and beneficial effect.

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    A Olusanjo Omoniyi

    Immigration Attorney
    Answered on

    This bill is at its introductory level as it has sat in subcommittee since February. The name of H.R. 392 says it all, "Fairness for High-Skilled Immigrants Act of 2017." As currently drafted, the bill has nothing to do with EB-5 visas. In fact, if it is passed as it is, it will not have any impact with EB-5 unless it is substantially changed. The bill, as currently drafted, is supposed to amend two aspects of the Immigration and Nationality Act ("INA" or immigration law): (1) first, to eliminate per country numerical limitation for EB-2 and EB-3 immigrant visas which are visas for high-skilled immigrants. By all account, unlike EB-2 and EB-3 immigrants, EB-5 petitioners are not required to be high-skilled. (2) The bill is intended to increase per country numerical limitation for family-based visas from 7% to 15% of the total number of family-sponsored visas. Thus, the bill never addresses EB-5 and it should not have any impact on the EB-5 immigrant visa.

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    Bernard P Wolfsdorf

    Immigration Attorney
    Answered on

    This bill gets rid of the per country visa limitation so, most likely, all countries will stretch to a 2-3 year waiting line and China would see a shortening of its waiting line. So, instead of creeping up to 4 years, as will otherwise happen, the Chinese waiting line will stay the same, most likely not going beyond 3 years. Also, it removes the borrowing of EB-5 visas from the Chinese Student Protection Act that currently takes almost all of China''s allocated EB-5 category. Presently, China basically only gets rest of the world''s unused visas so this is hugely important.

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    Charles Foster

    Immigration Attorney
    Answered on

    If HR 392 is enacted and if all per-country limitations for employment-based immigrants are eliminated, it would somewhat help applicants from China since the Chinese have a significant backlog. However, it could possibly create a small backlog for applicants from some other countries, depending upon the ongoing demand by the nationals of those countries.

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    BoBi Ahn

    Immigration Attorney
    Answered on

    My understanding of this bill (H.R. 392) is that it would only affect the "skilled" employment-based immigration categories. The Fairness for High-Skilled Immigrants Act may be particularly helpful to nationals of India and China with green card cases pending in the employment-based preference skilled worker categories, EB-2 and EB-3. However, the Fairness for High-Skilled Immigrants Act would only redistribute the same annual number of employment-based visas, as it does not increase the overall employment-based per-country limit. Should the Fairness for High-Skilled Immigrants Act (which is identical to (HR 3012) ) become law, nationals from countries that are not backlogged will likely still face increased waiting times in both the EB-2 and EB-3 employment-based preference categories.

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