by Kate Kalmykov and Nick Rodriguez
It has become increasingly clear that it is not so much a possibility that there will be visa retrogression for Chinese investors as it is an inevitability. The Immigration and Nationality Act limits the number of visa numbers issued within each fiscal year. In the EB-5 category, there are about 10,000 visa numbers available per fiscal year for Chinese immigrants—600 of these are reserved each year for those who obtained visas through the Chinese Student Protection Act of 1992—so, in actuality, there are approximately 9,400 available. These 9,400 visas that remain are not for EB-5 investors alone. Rather, this figure represents investors and any derivative dependent applicants. The more family members that apply based on a single investors’ EB-5 investment, the less visas remain available for that fiscal year for other visa applicants. If we are to base the number of available visas on a principal investor, their spouse and at least one child, then that would make room annually for little more than 3,100 investors. Given the current popularity of the EB-5 program, it is clear that this will not be enough to meet demand.
As noted above, the number of visas issued in this category in a single fiscal year has never reached this limit, however, an upward trend in the amount issued in recent years suggests that this will not be the case for much longer. In FY 2013, 8,564 EB-5 visas were used (the most ever), up from 7,640 in FY 2012. Moreover, USCIS has already indicated that it has around 6,500 I-526 petitions pending for FY 2014. If we assume that each petitioner has filed to obtain visas for them self, their spouse, and their child, then approval of even half these petitions would use up all visa numbers for FY 2014. Thus, it seems that visa retrogression will likely occur in 2014.
What visa retrogression means, essentially, is that there is a backlog of applicants. Accordingly, these applicants will be placed on a waiting list in order of the date in which their petition was filed. This date is called a “priority date.” While an applicant can continue to file an underlying immigrant petition at any time, they may not pursue consular processing or adjustment of status (the actual green card application) until their number is current. When their priority date is reached as published on the Department of State (which is issued monthly) Visa Bulletin, they can proceed with their green card application either through immigrant visa processing abroad or adjustment of status in the United States.
Perhaps the most important thing to note about visa retrogression for Chinese nationals is that I-526 petitions (the actual EB-5) will still be processed by USCIS in the event of retrogression. This is also welcome news to EB-5 project and regional center sponsors as they will be able to continue to access funds even in the event of EB-5 immigrant visa retrogression.