Kate's Corner: EB-5 Petition Based Immigrant Visa Processing Trends at U.S. Consulate in Guangzhou, Mainland China

by Nataliya Rymer and Kate Kalmykov

The U.S Consulate in Guangzhou is considered both high volume and high potential for fraud when it comes to processing of immigrant visas, a key step in the immigration process for EB-5 investors. As such, extra precautions should be taken when going through consular processing in Guangzhou. The expected retrogression for EB-5 applicants from mainland China incentivizes the speedy submission of immigrant visa applications in hopes of increasing the chances of receipt of immigrant visas prior to retrogression. However, there are important issues with respect to the immigrant visa process at the U.S. Embassy in Guangzhou which should be considered. Failure to  take these issues into account may in fact result in the delay of processing, rather than its expedition. We offer the below pointers which take into account the strict adjudication trends at this consulate.

1.  Preparation and submission of the electronic immigrant visa applications (Form DS-260) and supporting documents:

  a.   Information requested: The immigrant visa application (DS-260) requests a lot of information, such as a list of residences going back to the age of sixteen, employment for the last ten years, as well as a lot of additional information.

TIP: It is very important to provide all of this information accurately and consistent with the information provided along with the I-526 petition. Any inconsistencies or missing information may cause delays in the processing of the applications.

  b.   Documents requested: It is required that copies of certain civil documents be provided along with the applications.

TIP: It is important to submit all of the documents required as failure to do so can cause delays subsequent to the submission, as well as requests for evidence. The Department of State lists these requirements on their website.[1]

  c.    Accuracy of names: Oftentimes, the National Visa Center (NVC) records the names of the investor and/or the dependent family members inaccurately, providing visa fee bills that contain errors. Every effort should be made to review the visa fee bills carefully and to inform the NVC of any errors, requesting correction.

TIP: Where the errors remain unaddressed at the time of the submission of the applications and documents, copies of correspondence with NVC requesting said corrections should be included with the submission. This also applies to cases where the NVC fails to issue visa fee bills for all accompanying dependents.

  d.   Expediting immigrant visa processing: In limited circumstances, it may be possible to expedite the processing of the immigrant visa applications by having the NVC forego preliminary processing of these applications and forward them directly to the consulate. Where electronic processing is assigned, in addition to the electronic submission of the immigrant visa application, the supporting documents are submitted via e-mail. This substantially decreases the pendency of the process, from the submission of the required documents until the scheduling of the immigrant visa interview.

TIP: While the NVC normally assigns cases for electronic processing, it may be

possible to request that a particular case is switched from regular to electronic processing by emailing [email protected] NVC has the discretion to decline or accept this request.

2.   In preparation for the immigrant visa interview

  a.   Upon submission of applications and documents: Once the applications and supporting documents are submitted, await notices from the NVC and the Guangzhou Consulate regarding the progress of the immigrant visa process. NVC will inform of the receipt of the documents and the processing status. The consulate will send notification upon receipt of the documents and the scheduling of the interview, together with the instructions for the medical examination. It is important to await these instructions prior to completing the medical examination as the results are only valid for a limited period of time.

  b.   Upon scheduling of the interview: Once the interview appointment has been scheduled, the investor and family members must ensure that all of the supporting documentation submitted is still valid. For instance, if any of the accompanying children have turned sixteen, police certificates must be obtained and submitted at the time of the interview. If any of the applicants’ passports have expired while awaiting the interview, new passports must be obtained and brought to the interview.

  c.   Recent issue: Recently, there have been issues where the NVC has failed to forward original documentation to the U.S. Consulate in Guangzhou in connection with immigrant visa processing and scheduling of the interview. This is the result of a recent change with respect to the requirement that only copies of civil documents be submitted to NVC for processing, rather than original documents previously required. Despite this problem, all applicants for immigrant visas are instructed to attend their interview as scheduled regardless of whether the NVC had sent their documents timely. This glitch is currently being addressed by the NVC and updates will be sent when this issue has been addressed.

3.   At the immigrant visa interview

  a.   Information regarding the investment: It is important to be familiar with the EB-5 investment project. The investor and accompanying family members should review the documents submitted with the I-526 petition in order to be able to answer questions regarding the investment, as well as the source and path of the funds used for the investment.

  b.   Adoptions and step-children: Providing specific and correct information regarding all familial relationships is important at the time of the interview. This is especially true where any of the familial relationships were created via adoption or marriage. The investor and family members should be able to speak in detail regarding the process of the adoption as well as the source of the documentation secured to evidence the adoption. U.S. State Department provides information[2] regarding the acceptable source of the documentation. Often during the immigrant visa interviews where the qualifying relationships were created via adoption, the consular officer will invite a Chinese adoption and document expert to join the interview in order to ask extensive and very specific questions regarding the adoption. Failure to provide specific information and documents can result in extensive delays or, worse, the denial of the visa applications. This includes providing documents evidencing custody of the children applying for visas along with the investor, as well as declarations by the non-accompanying parent providing permission for the immigration of their child.

  c.   Providing specific and correct information regarding information elicited in the application: For instance, many of the citizens of Mainland China are members of the Communist Party. It is important to remember that this information must be included in the applications and reasons for this membership must be disclosed. Generally, Communist Party membership within two (2) years prior to the filing of the application is a ground of “inadmissibility” (ineligibility), unless this membership falls within specific parameters, including where said membership is necessitated by the country regime, economic reasons, etc. This information should be disclosed in a detailed declaration, and where possible, we recommend that membership in the Party be discontinued prior to the filing of the application.

Following the above guidance is especially important in light of the fact that EB-5 based immigrant visas for Chinese nationals are expected to retrogress as far as two years in May of this year. It is vital to do everything possible to enable smooth processing of the applications being filed at this time, so that Chinese national investors and their dependent family members are provided every chance to avoid being subject to the retrogression.

[1] http://travel.state.gov/content/visas/english/immigrate/immigrant-process/documents/submit/documents-to-submit-to-nvc.html

[2] http://travel.state.gov/content/visas/english/fees/reciprocity-by-country.html

Nataliya Rymer

Nataliya Rymer

Nataliya Rymer is an immigration attorney at the Philadelphia office of Greenberg Traurig, LLP, with her practice focusing on employment-based immigration and compliance. Her areas of concentration include EB-5 immigrant investors, employment-based immigrant and nonimmigrant visas, immigration litigation, LCA and H-1B compliance, labor certification applications, and I-9 employment verification.