China’s accession to Hague’s Apostille Convention expected to streamline EB-5 processing
By Anayat Durrani
China has acceded to the Hague Convention Abolishing the Requirement of Legalization for Foreign Public Documents, also referred to as Apostille Convention. China will officially join the Hague Convention on November 7 of this year. The change is expected to improve and lessen the time and costs associated with authenticating certain documents.
The Apostille Convention, or the Convention of October 5, 1961 is an international treaty that eases the process of authenticating public documents for use in foreign countries. With this change will come more simplified procedures regarding official foreign public documents coming from China—such as birth certificates, marriage certificates, criminal records, degree certificates—which previously had to endure further certification or legalization by consular or embassy officials.
A public document issued in one Hague member country will now be certified for legal use in another Hague member country by having an “apostille” certificate from an official designated by the issuing country. The simplification in certifying certain documents is expected to save more time for individuals, including investors pursuing the EB-5 route.
“This reduces the time needed to prepare an EB-5 visa application and it also allows quicker consular processing once the I-526E application is adjudicated,” says Joana Fernandes, country manager, EB5 BRICS, LLC.
Rather than several months, Chinese nationals will now be able to authenticate their documents in only a few days, Fernandes says.
Changes in China expected to facilitate the process for EB-5 investors
Abeer Husseini, partner at the UAE office of Fragomen, says currently Chinese documents must go through a time-consuming multi-step authentication process that typically takes several weeks or months to complete.
“Once Mainland China adopts the treaty's requirements, Chinese documents will be subject to a one-step attestation process by issuing a single apostille certificate by a competent authority for use in the other Hague member countries, which is a much simpler and quicker process,” says Husseini.
China’s accession to the Apostille convention will help save time in another way that can be important to EB-5 investors and their families.
“Quicker processing time hedges the risk of children aging out under the EB-5 visa application,” says Fernandes.
Experts say the change is particularly beneficial for the source of funds section of the EB-5 application.
“For purposes of EB-5 source of funds an apostille document certifying an original signature by a relevant government official may assist an investor if USCIS calls into question the authenticity or validity of any of those documents submitted along with the EB-5 petition,” says Nataliya Rymer, shareholder, Greenberg Traurig LLP.
Since 1987, China has been a member of the Hague Conference. Until now, the country has been the largest nation without a simplified document legalization procedure. China is set to become the 125th country in the world to introduce the document Apostille procedure.
Apart from saving time, another noteworthy benefit of China’s accession will be seen in cost savings.
“The additional fees spent on the EB-5 application will be lower since Chinese nationals will no longer have to go through embassy authorization, a process known to be costly,” says Fernandes.
Future for China’s EB-5 investors
Rymer says it is important to note that it is already in force for Hong Kong Special Administrative Regions.
“It is not yet clear whether the process is going to be reciprocal for China, and China will confirm closer to the November ascension date whether it will likewise accept documents from treaty member countries,” says Rymer.
Rymer says it is also unclear whether China will adopt the electronic Apostille Program, called “e-App Program,” that launched in 2006 to assist in the implementation of technology under the Apostille Convention to support electronic issuance and verification of Apostilles worldwide.
While China’s accession brings with it a more streamlined process, Husseini says it is important to note that the Apostille Convention only pertains to documents issued by public authorities, such as government agencies, courts and notaries. Documents issued by private entities, such as employers, she says, may still need additional authentication.
“Individuals should expect temporary delays as the new process is implemented across consulates,” says Husseini. “This includes delays in Mainland China when obtaining and accepting apostilled documents at Chinese consular posts in other Hague member countries.”