By Attorney Ying Lu
In 2012, China surpassed South Korea to become the largest source country of U.S. investment immigration, accounting for over 75% of EB-5 visas that the United States issues. In 2014, data shows that about 85% of EB-5 funding came from China. The major influx of Chinese investors has resulted in an insufficient number of EB-5 visas available to meet the demand.
Back in December 2012, the U.S. Department of State issued its first official warning in a Visa Bulletin announcement that a special EB-5 Bulletin might be established in the second half of fiscal year 2013 for applicants born in Mainland China. Even though the “false alarm” never lived up to its expectations and the warning was removed from the following March 2013 Visa Bulletin announcement, the warning continued to appear throughout 2014. Early this year, the U.S. Department of State again announced that an EB-5 Bulletin may be enacted for applicants from Mainland China in July or August, given the surge in immigrant investor applications. On August 23, Charles Oppenheim, Chief of the Visa Control and Reporting Division at the U.S. Department of State, suddenly announced at the EB-5 Conference of the American Immigration Lawyers Association (AILA) that the 2014 EB-5 quota for Mainland China had already reached its cap. Moreover, only after October 1, 2014 of the new fiscal year would the new quota for 10,000 visas be available. The EB-5 Bulletin may appear yet again in May 2015, and when that day comes, it may cause setbacks of two years or more.
When the word got out, the bombshell headline “U.S. to Suspend Chinese Investment Immigration; Wealthy Chinese Unsure Which Way to Go” spread panic through those planning to immigrate to America through investments. In reality, headlines like this are very misleading. The United States hasn’t suspended immigration for Chinese investors at all, and USCIS is still reviewing investor I-526 applications as usual. Clearly, a lot of people that are concerned with EB-5 trends don’t understand the implications of the “Bulletin”.
1. What is the Bulletin?
Each year, the United States has a limited quota of 10,000 immigrant investor visas. This quota includes all visas issued to the principal investor, as well as his or her spouse and unmarried children under the age of 21. As such, there are only about 3,500 – 4,000 EB-5 investors that can actually be awarded an immigrant investor visa. If the quota is met for a certain year, applications will enter the Visa Bulletin, which means that the remaining investors must wait until the next fiscal year begins before they can be issued one of the 10,000 visas available. If the quota is also met in the second year, those remaining investors will have to wait again until the next fiscal year begins, up until they are included within the visa quota.
For successful immigration through investment, a Chinese investor must go through three steps: first, the investor must submit the I-526 application; next, following I-526 approval, EB-5 investors outside of the United States will be scheduled for a visa interview at the U.S. Consulate in Guangzhou, while those with legitimate non-immigrant status inside the United States must submit the I-485 application to adjust their status directly; finally, 90 days prior to the expiration of the conditional green card, applicants must submit the I-829 application to remove the conditions and obtain a permanent green card. It must be clearly noted that the Bulletin will not affect the I-526 review, but will impact the second step. In other words, it will affect when the applicant will be scheduled for the visa interview in Guangzhou or when they can adjust their status without leaving the United States.
During this application process, there’s a very important concept that investors must understand – the “priority date.” For the EB-5 visa, the priority date is the day on which USCIS receives the I-526 documents that the investor has submitted. With the Bulletin however, the priority date determines the investor’s place in line. The U.S. Department of State will announce an immigration bulletin each month describing the current availability of immigrant visas. In other words, this is the Visa Bulletin. The latest Bulletin for each month can be found on the website of the U.S. Department of State. Investors must keep track of monthly changes to the Bulletin to better understand how long they have to wait before they can submit the next set of paperwork.
How exactly does the Bulletin affect the application? For example, let’s say that USCIS received Mr. Wang’s I-526 application on January 1, 2015. This is his priority date. On May 1, 2015, the U.S. Department of State announced the launch of the EB-5 Visa Bulletin. Since the Bulletin won’t affect the I-526 review process, Mr. Wang’s I-526 application is approved on October 1, 2015. However, the cut-off date for the EB-5 Bulletin is January 1, 2014 based on the Visa Bulletin for the given month. As such, Mr. Wang can’t submit the paperwork for the second step of the immigrant visa application. Instead, he has to wait until the Visa Bulletin’s cut-off date reaches his priority date. In other words, he can only submit paperwork for the next step of the application after January 1, 2015. This is what we call “waiting for the Bulletin.”
As such, where permitted, we recommend that investors submit the I-526 application as soon as possible for an earlier priority date in the long line of applicants.
2. Effects of Bulletin on Children
Most Chinese investors apply for investment immigration to the United States for the next generation. As set forth in U.S. immigration law, only unmarried children under the age of 21 can immigrate with their parents. However, with the Bulletin in place, this may disrupt their original plans, especially for those families whose children are almost 21.
According to the U.S. Child Status Protection Act (CSPA) and without the Bulletin, the age of the children of applicants is frozen on the day on which USCIS receives the I-526 application and won’t change thereafter. However, with the Bulletin in place, even if the child’s age is frozen when USCIS receives the I-526 application, the age freeze only applies to the waiting period for I-526 approval. As soon as the I-526 application is approved, but before the priority date, the investor still has to wait to submit the next part of the application until after his or her priority date appears on the Bulletin. During this waiting period, the age of the investor’s children is not frozen and will continue to increase. As such, some children might “age out.” Let’s continue with the previous example: if Mr. Wang’s son was 19 years and 2 months on January 1, 2015 when Mr. Wang submitted the I-526 application, his son’s age will be frozen while they wait for I-526 approval. Suppose that Mr. Wang had to wait until October 1, 2015 for I-526 approval. Without the Bulletin, Mr. Wang could submit the paperwork for step two right away if the quota for EB-5 immigrant visas had not been met. After a successful visa interview at the U.S. Consulate in Guangzhou, he would then be able to emigrate with his son. However, with the Bulletin in place, Mr. Wang wouldn't be able to be scheduled for a visa interview in Guangzhou; suppose that he had to wait for 2 years before his priority date showed up on the Bulletin. By then, his son would already by 21 years and 2 months old; since he had already “aged out,” his son wouldn’t be able to emigrate together with Mr. Wang.
As such, we recommend that if investors want to immigrate with their children, it’s best to plan ahead. For children that are 18, it’s best to have submitted the I-526 application way ahead of time. If children are already older than 18, they may consider using the child as the principal applicant for an independent I-526 application. Five years after the child has obtained his or her green card and if he or she meets certain conditions, the child can apply to become a U.S. citizen and submit a family-based immigration application for his or her parents. If this child plans to go to college in the United States after high school, timing is important because as soon as he or she submits the I-526 application, the applicant will have an immigration intent which may adversely affect his or her future F-1 student visa application. We recommend that investors come up with a reasonable timetable after meeting with professionals and lawyers to avoid these problems as much as possible.
Children who have already completed their studies or have entered the workforce must be careful to maintain their legal non-immigrant status during their stay in America. For students already studying in the United States who will act as the principal applicant for the EB-5 application, if they plan to directly change their status while in the United States rather than attend a visa interview overseas, they must take the Bulletin into account. Ideally, they should submit the I-526 application at least three years before they intend to graduate. In this way, the student can receive a conditional green card upon graduation. Alternatively, the student can submit the I-485 and I-765 forms together so that he or she can receive a U.S. employment authorization card (EAD). In this way, future employers won’t need to support an H-1B work visa when the graduate begins looking for employment, which may give them a competitive advantage compared to other applicants. If the family waits to submit the I-526 application until right before graduation, based on the current wait times for USCIS approval, the student will probably still be waiting for approval after graduation. In general, a student can remain in the United States for an additional year after graduation for Optional Practical Training (OPT). However, the OPT condition is automatically void if the student is unemployed at any time for longer than 90 days. If this happens, the student loses his or her legal status as a student. If the applicant cannot find employment during the OPT period or if an employer isn’t willing to support the work visa, this may force the applicant to return to his or her home country to wait for the results of the I-526 application because his or her legal status expired. As you can see, preparing for and submitting the application as early as possible can help avoid a lot of unnecessary detours in the application process.
It must be noted that if students hold an F-1 student visa when they submit the I-526 application, we don’t recommend that they travel outside the United States because they may run into immigrant intent difficulties with the F-1 visa upon reentry. If the EB-5 applicant is already in the United States with an H or L visa, these international travel restrictions don’t apply, because H and L visas allow for dual intent. For EB-5 investors that hold H or L visas, we recommend that keep your job, because as soon as you are unemployed, you will lose your legal and valid non-immigrant status and must leave the country, even if your I-526 application has already been approved and you are simply waiting for the bulletin. What must be understood is that I-526 approval in itself does not provide investors with any immigration rights whatsoever.
If you do in fact lose your legitimate non-immigrant status or you submit the I-526 application too late and can’t wait in the United States to change your status, whatever you do, don’t overstay your visa when in the United States. Even if investors return to China, their application is still in effect, and they can continue to wait in China. After your priority date is listed on the Bulletin, have your lawyer submit an additional I-824 application so that you can replace your original change of status application in the United States with a visa from the U.S. Consulate in Guangzhou.
The Bulletin is bound to have a profound impact on Mainland Chinese EB-5 investors. Similarly, the Bulletin will also affect the investment withdrawal period for Mainland Chinese investors; the entire investment withdrawal period may be extended from the 5 – 6 years to 6 – 7 years or longer. Also, whether the project is with a regional center or if it’s a direct investment, industry insiders are still uncertain as to how to calculate for employment under the Bulletin. The USCIS has yet to provide its final interpretation.
However, as we stated above, the Bulletin only affects applicants born in Mainland China. If the principal I-526 applicant was born in Mainland China, but his or her spouse was born in Hong Kong, Macau, Taiwan or another country, the entire family may not be influenced by the Immigration Bulletin for Mainland China. Because the personal circumstances of every applicant are different, if investors have children that are almost 21, we strongly recommend that they talk with professionals and lawyers as soon as possible for a comprehensive evaluation of their circumstances and a reasonable immigration timetable.