By Ignacio A. Donoso & Benjamin Hu
In fiscal years 2012 and 2013, U.S. Citizenship & Immigration Service (USCIS) received over 6,000 I-526 EB-5 immigrant investor visa petitions. This was nearly double the 3,800 petitions that were filed in 2011. In 2014, this number again increased dramatically to over 10,000 petitions, and in 2015 USCIS received more than 14,000 petitions.
With the USCIS median processing time for I-526s at 14 to 17 months, the large wave of I-526 petitions filed from 2013 to 2015 has matured through the USCIS approval process, and is now progressing through the Department of State’s National Visa Center (NVC) for consular processing.
Standard NVC Procedures
Typically, after approving an I-526 petition, USCIS sends those petitions requesting consular processing to the NVC. In properly processed cases, the NVC issues a separate fee bill for every family member and dependent. After paying the fee bill, the family members receive a fee bill payment confirmation including a receipt number, which is required to begin the online electronic DS-260 form submission.
This electronic DS-260 has largely replaced the previous paper DS-230 as the process by which family members submit their personal information. At this point, each family member also submits original biographical and familial relationship documentation (popularly known as “Packet 3,” the former processing name) to the NVC.
Once the NVC completes its review of the documentation for completeness, it forwards the entire packet to the Consulate General of the United States in Guangzhou (Guangzhou Consulate), which takes responsibility for interviewing and issuing immigrant documents.
Standard Guangzhou Consulate Procedures
The Guangzhou Consulate handles all immigrant visa petitions for mainland China, including EB-5 immigrant investor petitions - and by extension, the vast majority of EB-5 visas worldwide. In 2014, the last fiscal year for which numbers are published on its consular blog, the Guangzhou Consulate processed 8,237 visa applications – or approximately 80 percent of the 2014 global EB-5 visa quota.
The remaining 20 percent includes EB-5 investors adjusting status within the U.S., as well as consular processing conducted outside of mainland China.
As these figures plainly show, the Guangzhou Consulate administers an overwhelming majority of EB-5 visas worldwide – far more than any other nation’s consular posts and USCIS processing of adjustment of status applications combined. Thus, Guangzhou Consulate procedures tend to set the pattern for global EB-5 processing.
Our experience in advising hundreds of investors in consular processing through the National Visa Center and the Guangzhou Consulate has enabled us to detect several trends that can introduce complications and errors in the post-petition consular processing stage.
Missing Dependents in National Visa Center Fee Bills
The most common procedural issue with NVC processing is incorrectly omitting a spouse or dependents from the Visa Fee Bill. Without a Visa Fee Bill payment confirmation, a family member is unable to file the online form DS-260, Immigrant Visa Electronic Application, to seek their conditional permanent residency visa.
Recent statements by USCIS indicate that the transformation of USCIS files from paper to electronic format have caused USCIS to send only the name of the approved investor to the National Visa Center, omitting the names of dependent spouses and children.
EB-5 case managers within China are reporting that, for as many as 90 percent of EB-5 investors with dependents, NVC has issued fee bills omitting these spouses or children. In such cases, our law firm’s practice is generally to submit written email and paper communication, notifying the NVC of the omission and requesting issuance of supplementary fee bills. This practice is usually successful. The NVC typically issues the missing fee bills within two months, allowing the entire family to pay together at the same time and proceed to the DS-260 stage.
The NVC sometimes fails to reissue new fee bills within a reasonable time: cases have been reported with outstanding family members’ fee bills still uncorrected, up to four months after the initial issuance. In these cases, immigrant applicants have found it effective to pay the issued fee bills and file the already-issued DS-260s, and then to file paper copies of the DS-230 Application for Immigrant Visa and Alien Registration for all accompanying family members who did not receive visa fee bills. Unlike the online DS-260, the DS-230 may be filed even without a visa fee bill payment confirmation.
The legal practitioner is advised to follow up by preparing and filing the NVC Packet 3 documentation for all family members, including those incorrectly omitted from the initially issued fee bills. Our law firm’s experience has shown that the NVC will generally reissue correct visa fee bills for all remaining accompanying family members, allowing all members to file DS-260s and then resubmit their Packet 3 documentation.
Children at Risk of ‘Age Out’
The NVC’s delays may increase a dependent child’s risk of “age out”. The Child Status Protection Act (CSPA) gives unmarried dependents two separate calculations in determining their constructive age: firstly by subtracting the adjudication time of the I-526 from their natural age, and secondly by extending eligibility to any child “seeking to acquire” permanent residency within one year of visa availability.
Paying the visa fee bill is identified as an action that demonstrates “seeking to acquire” permanent residency. If the NVC fails to issue a fee bill for a dependent, that dependent cannot take this action to “seek to acquire” permanent residency.
In such cases, the legal practitioner should communicate to the NVC the urgency of the dependent’s age of eligibility. In cases where the NVC has erroneously determined the child to have “aged out” despite CSPA calculations, this attorney communication may require detailed date calculations confirming that the child remains eligible under CSPA regulations.
Additionally, the lawyer for the child should file a DS-230. This action has also been identified as satisfying the “seek to acquire” provision. As above, the remaining family members should also file their DS-260s after paying their visa fee bills. The legal representative should provide the child’s Packet 3 documentation to the NVC along with those of all other accompanying family members.
The NVC is likely to reissue a corrected fee bill to permit the child to file a DS-260 online. It may also be necessary to resubmit all Packet 3 documentation a second time.
Creation of New NVC EB-5 Investor Assistance Desk
In its April 2016 Visa Bulletin update, the DOS published details concerning the creation of a specialized EB-5 Investor Assistance Desk, reachable by email at [email protected]. This new service channel appears to be created in part to respond to the growing problem of family members omitted from visa fee bills. According to the Visa Bulletin, the Investor Assistance Desk “will oversee the addition of potential derivative applicants and creation of fee bills. Customers will e-mail their derivative’s relationship documents to [email protected], which can also be used for inquiries on derivatives, the Child Status Protection Act, and general case status.”
Notably, the Investor Assistance Desk is intended to receive relationship documents of derivative applicants. This suggests that it may serve as a channel for submission of substantive evidence, in addition to providing responses to purely procedural inquiries. Practitioners with NVC omissions or time sensitive “age out” provisions may find this new electronic mail delivery system more responsive to deadlines.
Consular Processing Issues at the Guangzhou Consulate
a. Substantive Petition-Related Review at Consulate
USCIS approval notwithstanding, consular officers have broad latitude of inquiry in documentary evidence, as applicants must provide “all other records or documents concerning (his or her) case which may be required by the consular officer” . The consular officer may revisit and question the details of the underlying I-526 petition, including the applicant’s source of funds, regional center or investment project, and the identity of legal representative or attorney.
The Guangzhou Consulate has frequently requested additional documentation. This appears more likely in cases where the immigrant applicant is linguistically unable to follow the discussion in English, especially if the Guangzhou consular officer denies requests to proceed in Chinese, resulting in unsatisfactory applicant answers to the consular officer’s inquiries. The Guangzhou Consulate has been known to issue a Final Processing Letter indicating preliminary approval, while also including an instruction to submit “documents showing where investment funds come from”, with no further specification or explanation.
In the absence of specific issues under inquiry, a legal practitioner may wish to resubmit the complete I-526 petition materials concerning the petitioner’s lawful source of funds for DOS review, to ensure completeness and full compliance.
b. Recommendations for Revocation
Although DOS responsibilities focus on reviewing rather than re-adjudicating immigrant petitions, consular posts nevertheless have the authority to return an immigrant visa petition to USCIS for reconsideration and revocation. This action is permitted if the officer discovers facts that give knowledge or reason to believe that the beneficiary is not entitled to the approved status, either because of clear processing error, changed facts, or fraud and misrepresentation.
To meet the “reason to believe” level of review, the officer must have discovered new evidence beyond that which was available to USCIS in making its adjudication. The officer must also determine that such evidence would have resulted in the petition’s denial had USCIS known this information. If these apply, the consular officer returns the petition with an explanatory memorandum to the NVC, which performs its own review and then returns it to the USCIS.
New evidence may come to light via on-the-ground investigations within mainland China. In recent years, the USCIS and DOS have collaborated in increased investigations in mainland China, sending two-person bilingual investigation teams to interview companies, employers, and other parties mentioned in the I-526 documentation to verify the investor’s source of funds. Although the majority of these investigations take place during the I-526 adjudication process and do not preclude an ultimate I-526 approval, in a small number of cases these investigations have occurred after I-526 approval and NVC processing.
Where the consulate returns a petition to NVC, legal counsel and petitioners should pursue communications with the USCIS Immigrant Investor Program Office (IPO), rather than with the NVC or the consular post: “[the consular] post should refer the requestor to the USCIS office that adjudicated the petition, not to NVC.”. Although the IPO maintains an email address for quick communications at [email protected], legal practitioners may wish to follow up with written paper requests for information at the IPO’s mail stop address.
c. Immigrant Applicant Subject to J-Visa Two-Year Home Residency Requirement
As more Chinese students seek educational opportunities in the U.S., an increasing number may also be persuaded to apply for, and enter the U.S. on, J-visas as exchange students – often without fully understanding the two-year home residency and physical presence requirement. Aside from narrow exceptions, the J-visa prevents the holder from applying for an immigrant visa until the exchange student has returned to their home country and remained physically present there as a resident for two years.
The EB-5 investor visa, as with any other immigrant visa category, is also subject to this two-year home residency requirement. Commonly, this presents a problem when an investor is granted an interview date and wishes to bring a dependent spouse or child with an undischarged J-visa residency requirement as an accompanying family member.
At the consular interview, the family member who is subject to the J-visa residency requirement should be prepared to disclose the details of their former exchange student status. Guangzhou consular officers have typically scheduled a second interview after the J-visa residency requirement is satisfied, in order to complete the process and approve the immigrant visa application.
If the dependent has a significant period of remaining J-visa home residency, exceeding six months after the interview date, the family may consider follow-to-join. Provided that the dependent’s relationship to the principal remains unchanged throughout the process, there is no time limit for follow-to-join benefits. In the case of a son or daughter near the age of 21, if CSPA calculations protected them from “age out” at the time of paying the fee bill and filing the DS-260, the child should remain eligible for follow-to-join age calculations even after a delay necessitated by the two-year home residency requirement (although if the child marries, this would disqualify them from eligibility for dependent status separate from the age out concern).
d. F Student Visa Status and Consular Processing
Many EB-5 investors are U.S. graduates or current students, with a recent history of study in the U.S. Further complications may arise where a student overstayed their F visa status. Overstay could occur by remaining in the U.S. but not maintaining a full course load, or failing to timely file for Optional Practical Training and thereafter remaining in the U.S. This situation could lead consular staff to incorrectly equate visa overstay with “unlawful presence”.
Normally, INA § 245(k) allows an EB-1, EB-2, EB-3 (and certain types of EB-4) beneficiary to continue with adjustment of status even if they have engaged in unauthorized work, or fallen out of status, provided that these violations occurred for fewer than 180 days in the aggregate. EB-5 petitions are not included under this forgiveness of brief status violations in I-485 filings allowed under INA § 245(k).
In one recent case, the EB-5 investor had previously entered the U.S. on F-status as a student. After encountering difficulties in his studies, the investor’s study load fell below a full course of studies. The student remained in the U.S. for more than one year before returning to China, without engaging in unauthorized employment. The investor also did not receive notification from the USCIS or an immigration court of any formal determination that he was unlawfully present in the U.S.
The investor subsequently filed an EB-5 petition, which was approved.
However, at the interview stage, the consular officer issued a refusal letter indicating that the investor’s visa application was denied due to §212(a)(9)(B) unlawful presence from his prior F-status.
Both USCIS and DOS support the distinction between an alien “out of status” and an alien in unlawful presence. In this case, our law firm submitted a letter of explanation via the Guangzhou Consulate online inquiry form, which identified the consular officer’s misapplication of INA § 212(a)(9)(B)(ii), and cited USCIS and DOS authorities. We then clarified that, although the student fell “out of status” and became potentially subject to removal proceedings, the USCIS or immigration court had never determined him to be in the U.S. unlawfully, and therefore his “out of status” period did not qualify as unlawful stay. Upon review, the Guangzhou Consular staff reconsidered their prior decision and approved his immigrant visa application.
The dramatic growth of the EB-5 visa category in previous years has brought a wave of cases to the NVC and the Guangzhou Consulate. In addition to an increased caseload, the industry is witnessing an increase in verification inquiries from DOS, conversions from paper to digital filings, and complications in the NVC and consular interview stages. Practitioners and clients alike can benefit from proactive engagement with staff at all levels of the visa application stage, to best serve the goals of visa applicants while safeguarding the integrity of the industry.
 https://egov.uscis.gov/cris/processingTimesDisplay.do;jsessionid=abcNhWbOcUXpF4aSXONov, retrieved on Mar. 24, 2016.
 http://guangzhou.usembassy-china.org.cn/immigrant_visas.html retrieved on Mar. 28, 2016.
 http://blogs.usembassy.gov/guangzhou/immigrant-investor-visa-eb-5-visas-frequently-asked-questions/, retrieved on Mar. 29, 2016.
 PM-602-0097, USCIS April 15, 2015: Policy Memorandum: Guidance on Evaluating Claims of “Extraordinary Circumstances”, at p. 5.
 9 FAM 42.42 N12.6, “Sought to Acquire LPR Status” Provision
 https://travel.state.gov/content/visas/en/law-and-policy/bulletin/2016/visa-bulletin-for-april-2016.html, at Section D., retrieved on Mar. 24, 2016.
 INA § 222(b) Other Documentary Evidence for Immigrant Visa
 9 FAM 504.2-8(A) Suspending Action and Returning Petitions
 9 FAM 504.2-8(A)(2)(4)
 9 FAM 504.2-8(B)(5) Receiving Requests From Petitioner, Applicant, or Representative.
 131 M Street NE 3rd Floor, Mailstop 2235. Washington, DC 20529.
 9 FAM 502.1-1(C)(2)(b)(2)(a) Derivative Applicants/Beneficiaries: “There is no statutory time period during which the following-to-join alien must apply for a visa and seek admission into the United States.”
 AFM 40.9.2(a)(2)
 DOS 9 FAM 302.9-14(B)