+1-800-997-1228
Questions & Answers

How could the EB-5 backlog lawsuit help China-born investors?

I have read a lot about the class-action lawsuit by a group of China-born investors against the U.S. government about the current method of counting EB-5 visas. As a Chinese EB-5 investor myself, I am very curious about how a potential win could improve the 15-year backlog facing investors from China. If the court agrees with the claim of the plaintiffs, what could be expected? How might USCIS proceed with all the applications that are stuck in the backlog? How much could the waiting time be shortened?

Answers

  • Avatar

    BoBi Ahn

    Immigration Attorney
    Answered on

    If the investors receive a ruling in their favor, then it would shorten the waiting period for visa availability since the visa numbers that were used for derivatives would be freed up for use.

  • Avatar

    Marko Issever

    EB-5 Broker Dealer
    Answered on

    I wish I could give you a straightforward answer here. Essentially, the argument stems from the fact that USCIS claims the quota is on the number visas to be issued under the EB-5 program and therefore, 10,000 visas per year. The lawsuit says that the law meant 10,000 investors per year. Since USCIS has been interpreting the law their way, if we assume the average applicant brings a spouse and two kids, that reduces the quota to 2,500 per year. So, one might expect that if the government loses the suit, the pending applications processed could go up by four times. This would reduce the waiting time for the Chinese investors who are experiencing horrendous retrogression at the moment, now at 17 years, significantly. I know that I could not answer your question exactly, but I hope I was able to shed some light on it.

  • Avatar

    Marisa Casablanca

    Immigration Attorney
    Answered on

    The lawsuit filed is to correct how the numbers are counted from the allotted visas to China. The lawsuit is based on the premise that only the investor should be counted in the 10,000 and not family members. If the lawsuit is successful, this would cut the wait time to at least one third of what it is now or more. The manner in which USCIS would proceed would be determined by their management team on how to handle the conversion.

  • Avatar

    Julia Roussinova

    Immigration Attorney
    Answered on

    If the lawsuit is successful, the ultimate benefit is to exclude dependents and only include principal EB-5 investors in the county of 10,000 immigrant visas, which would reduce the backlog but not tremendously.

  • Avatar

    A Olusanjo Omoniyi

    Immigration Attorney
    Answered on

    The suit sounds interesting but, the annual limit of how many EB-5 visas that can be granted remains a sticking point on two grounds. First, only 10,000 visas can be granted on annual basis.

  • Avatar

    Phuong Le

    Immigration Attorney
    Answered on

    There's no clear answer, but the simplest benefit would be dependents would no longer be included in the annual quotas. That alone would free up a considerable amount of China's quota that is currently being gobbled up by dependent family members. Nobody knows for certain if the remedy would be retroactive (applicable to all pending petitions) or only for future petitions, but any relief would help considerably.

  • Avatar

    Jinhee Wilde

    Immigration Attorney
    Answered on

    If the court rules in favor of the plaintiffs and USCIS will not appeal that decision, then there is a chance that most of the Chinese investors will receive immediate relief. However, the likelihood for such a dramatic benefit derived through this lawsuit is very remote and the government has signaled its intention to fight it all the way. According to the attorneys who are litigating this case, they put the success possibility at less than 10 percent.

  • Avatar

    Vaughan de Kirby

    Immigration Attorney
    Answered on

    That is a difficult question! Any win would be appealed so any implementation by USCIS would be delayed. Or we could hope that a settlement would be reached that would change the method currently used by USCIS. If the suit were successful, all or a major part of the backlog would be eliminated. Let us hope this can happen, as the current situation is very unfair to Chinese and Vietnamese applicants.

  • Avatar

    Dale Schwartz

    Immigration Attorney
    Answered on

    Nobody knows for sure. But the lawsuit argues that spouses and children should not be counted toward the quota. If they win the case, the backlog from China would shorten to (probably) two to four years.

  • Avatar

    Lynne Feldman

    Immigration Attorney
    Answered on

    It could be shortened a lot if the court agrees that derivatives should not be counted. We will need to see how the court implements any favorable decision to obtain details.

  • Avatar

    Bernard P Wolfsdorf

    Immigration Attorney
    Answered on

    If the lawsuit is ultimately successful then the waiting line will be shortened to only one-third or less than present. Instead of 3,000 investor families, we get 10,000 investor families.

  • Avatar

    Salvatore Picataggio

    Immigration Attorney
    Answered on

    Not sure if a positive result would apply retroactively, but it seems the goal is to have only the investor count toward the cap (which seemed to be the original intent), not the entire family, meaning more investor families could be allowed to participate and possibly decrease the backlog. We will see how it shakes out.

  • Avatar

    Charles Foster

    Immigration Attorney
    Answered on

    There is a class-action lawsuit filed on behalf of Chinese EB-5 investors in U.S. District Court alleging that the U.S. Department of State exceeded its statutory authority by counting not only the individual EB-5 investor against the annual EB-5 quota applicable to China, but has also counted their immediate family members, being their spouse and unmarried children under the age of 21 who are also applying for immigrant visas. If there is a favorable decision it would mean that the waiting period for Chinese nationals would be shortened to a certain degree; how much would depend upon a variety of factors, including whether or not there is, first and foremost, a favorable determination and secondly whether or not that determination is applied retroactively in order to recapture numbers that were misapplied. In short, it could cut down the waiting period by a number of years.

Add your comment

Use a Facebook account to add a comment, subject to Facebook's Terms of Service and Privacy Policy. Your Facebook name, photo & other personal information you make public on Facebook will appear with your comment.