What retrogression means for Vietnamese investors

By Nataliya Rymer 

On May 1, 2018, the U.S. Department of State moved back priority dates for EB-5 investors born in Vietnam to July 14, 20141, known as retrogression.  As of May 1, 2018, only those Vietnam-born investors with I-526 petitions received by USCIS2 prior to the cutoff date listed by the State Department in its monthly Visa Bulletin are able to file their applications for conditional residence from inside or outside of the U.S.3  While the priority dates found in the Visa Bulletin do not generally move in real time, the Department of State announced recently that it will move the cutoff date to January 1, 2016 at the start of fiscal year 2019 on October 1, 2018.4  While this anticipated forward movement is a positive development, the Vietnam–born EB-5 investors now will be subjected to a wait before being able to apply for and obtain their conditional residence.  This brings up issues not previously encountered by Vietnamese investors, which are important to consider and understand. 

WILL MY CHILDREN CONTINUE TO QUALIFY? 

In deciding to pursue their green cards via the EB-5 Immigrant Investor program, many Vietnamese investors were motivated by their desire to secure green cards for their children.  Retrogression has given rise to concerns about whether their children will be able to process along with their parents for a green card because generally, immigration law only allows children under 21 years of age to qualify for green cards as dependents of their parents. 

However, in 2002, Congress passed Child Status Protection Act (CSPA) in order to relieve foreign nationals who were going through green card sponsorship in the U.S. from the lengthy processing times of the immigrant visa petitions.  Importantly, the goal of CSPA was not to provide relief from visa retrogression, though it does at times inadvertently help with this; instead, the CSPA provides relief to children by “freezing” the child’s age during the adjudication period of an immigrant petition at USCIS.  In the EB-5 petition context, CSPA is calculated at the time the priority date for a given I-526 petition becomes current, at which time the dependent child’s biological age is reduced by the total number of days the I-526 petition was pending.  The number resulting from this calculation is referred to as the child’s “CSPA age”.  If this “CSPA age” is under 21, the child qualifies to process as a dependent of the EB-5 investor and has one year from that date to seek to obtain a green card by making an adjustment of status (Form I-485) or immigrant visa application (Form DS-260) filing, or a number of other qualifying steps.  As a reminder, taking these steps prior to the priority date becoming current in and of itself does not offer protection under CSPA. 

CAN THE INVESTORS’ CHILDREN REMAIN IN THE U.S DURING RETROGRESSION? 

Many of the investors’ children are currently in the U.S. attending school on a F-1 foreign student visa.  Many investors find themselves concerned that their children will not be able to continue their studies in the U.S. following the approval of an EB-5 petition because of the temporary intent requirement for the approval of an F-1 visa. 

It is possible to continue showing such temporary intent at the time of an F-1 visa application, particularly where the child did not file the EB-5 petition him/herself and is a dependent of the investor.  It would be important to be able to demonstrate continuing ties to Vietnam each time an F-1 visa application is made at a U.S. consulate.  However, if international travel is not necessary, the investors’ children would be able to continue pursuing their F-1 visa-based studies in the U.S. while maintaining their F-1 status without the requirement for a new F-1 visa stamp application at a U.S. consular post.   

It may become more challenging applying for F-1 visas at the U.S. consular post where the EB-5 petition was approved and the immigrant visa filed prior, or subsequent, to retrogression.  However, even in that event, students should take care to demonstrate continuing ties to Vietnam and explain that, as their immigrant visa is retrogressed, their immediate intent is to return to the U.S. solely to continue their studies. 

Importantly, the F-1 visa status provides students the ability of 12 months of employment once they have earned their academic degree, through optional practical training (OPT).  This 12-month-long employment authorization may be extended by an additional 24 months, where the student in question earned a STEM degree and their employer is enrolled in an electronic compliance program called E-Verify.  Students with degrees designated as STEM by the U.S. Immigration and Customs Enforcement should check with their OPT employers to determine whether they qualify for a 24-month STEM extension. 

WORK VISAS FOR INVESTORS AND DEPENDENT CHILDREN 

Some investors, rather than awaiting their turn to be able to obtain their immigrant visa at the U.S. consular post in Ho Chi Minh City, may wish to explore options for being able to enter the U.S. on a visa enabling them to work in the U.S. Yet others will wish to explore a similar option for their children who may be finishing up their studies in the U.S.  

The H-1B visa is available for positions requiring, at a minimum, a Bachelor’s degree or equivalent in a specific field.  Most private employers’ H-1B petitions are subject to a per–fiscal year cap of 85,000 visas and must be filed over the first business week of April of each year, for a start date on October 1.  Because of the cap however, the U.S. Immigration Service (USCIS) conducts a lottery to randomly select the number of petitions allotted by the cap.  However, a number of non-profit employers, such as colleges and universities and affiliated entities, non-profit research institutions, and the like, are not subject to a fiscal year cap.   

Investors who work in managerial or executive (or specialized knowledge) positions for international companies with offices in the U.S., or who own businesses they wish to expand to the U.S. may avail themselves of an L-1A intracompany transferee visa, which requires a corporate relationship between the U.S. and international company where the transferee must show employment for at least 12 months in the past 3 years prior to the filing of the L-1 temporary visa petition.   

Where investors and their children have obtained citizenship in a third country, other than Vietnam, they could become eligible for a number of other work visas. 

COMPLY WITH U.S. IMMIGRATION LAWS  

While the investors’ green card process has slowed down due to retrogression, it is of vital importance to ensure continuing compliance with U.S. immigration laws while awaiting the green card interview.  Violations of immigration law could serve to make applicants ineligible for green cards (inadmissible), thus derailing several years of waiting, as well as a sizable investment.  Also, those in the U.S. on F-1 or J-1 visa status are now subject to the new USCIS policy where they will become subject to potential bars if they do not comply with the requirements of their visas.5  This is something that was not an issue until this recent policy change.  Additionally, entries in visitor status for impermissible purposes like attending public school could lead to placement in removal proceedings and finding of inadmissibility (ineligibility for an immigrant or a temporary work visa).  Any arrests or convictions anywhere in the world should be reviewed very carefully to review whether they cause issues for continuing green card eligibility.   Overall, compliance with the U.S. immigration law while awaiting to obtain conditional residence are important for having a smooth green card process once the priority date for the EB-5 petition is no longer subject to retrogression.