The May 2015 Visa Bulletin announces that a cut-off date for the EB-5 visa category of May 1, 2013 has been established for only those applicants from mainland China (see below) due to high demand from these applicants. The cut-off date has the effect of establishing a line for when an investor can apply for an EB-5 visa. Accordingly, during the month of May 2015, only those investors (and their derivative beneficiaries) who have an approved I-526 Petition with a Priority Date of May 1, 2013, or earlier may apply for an EB-5 immigrant visa. An investor can find his or her Priority Date by checking his or her I-526 Petition approval notice. Each month the DOS will issue a new visa bulletin where the cut-off date (i.e. May 1, 2013) can move forward, backward, or remain stagnant.
Everyone should remember this only affects those individuals whose country of “chargeability” (or country of birth) is mainland China. Thus, anyone born in Hong Kong, Taiwan, or Macau is not affected. Furthermore, if an investor’s spouse was born in a country other than mainland China, the investor and their family may be “cross-chargeable” to the spouse’s country of birth, thereby escaping quota retrogression.
This will impact developers and investors. For developers, the length of the EB-5 loan will likely have to extend past the typical five to seven years, as we discussed previously here. However, the primary impact will be felt on investors as their immigration process will now be delayed by approximately two years. Below are some of the frequently asked questions by investors:
1. I have my I-526 Petition approved, but have not received a visa yet. What happens to my child who may age-out?
The Child Status Protection Act (CSPA) should freeze your child’s age for the purposes of immigration. The DOS has stated that any of the following actions will freeze a child’s age:
- Submission of the DS-260;
- Payment of the visa fee; OR
- Submission of a DS-230 to the NVC;
You should contact your immigration attorney immediately to ensure proper steps are being taken to protect your child’s ability to be a derivative beneficiary of your approved I-526 Petition.
2. What happens if my I-526 Petition is not approved until after May 1, 2015?
You will be subject to retrogression. Once your I-526 Petition is approved, check the Visa Bulletin at that time to find out if your priority date is current. If the Priority Date listed on your I-526 Petition approval notice is prior to the cut-off date listed on that applicable Visa Bulletin, you will be able to apply for an immigrant visa or file an adjustment of status. If your Priority Date is after the cut-off date listed on the applicable Visa Bulletin, you will not be able to apply for an immigrant visa or file an adjustment of status, and will have to keep checking the Visa Bulletin until your Priority Date is current.
3. Where can I check my priority date?
The DOS posts the Visa Bulletin here. You can learn all about how to check your priority date here. Additionally the DOS maintains a “Priority Date Checker” which is an interactive form that will automatically populate the cut-off date applicable for you.
4. If I am eligible to file, but have not yet filed my adjustment of status based on my approved I-526 Petition, what happens if I file my adjustment of status after May 1, 2015?
You will be unable to file your adjustment of status after May 1, 2015 unless your Priority Date is current.
5. I have filed my adjustment of status but have not yet received approval; can I continue to extend my advance parole (travel permission) and employment authorization after May 1, 2015?
Yes, you can remain in the United States and continually renew your advance parole (travel permission) and employment authorization. You will not receive adjudication of your adjustment of status until your priority date is current.