Many of our clients from mainland China are particularly concerned about the probable retrogression of the EB-5 visa due to the increasing popularity of EB-5 for people from mainland.  At Streit & Su, we do understand that this is a legitimate concern, but we have also noticed that many of them, unfortunately, fall victim to the fragmented information hailing from unreliable sources.  Consequently, we often find it necessary to clarify what retrogression really means for Chinese EB-5 investors.  Here is how we can explain this issue in the most reader-friendly way: 

To understand this issue, you need to know three terms:

·         “Visa Limitation” – This one is easy.  Basically, America only gives a certain amount of visas to people from a certain country each year.  Discrimination much?  No, not under the current law.

·         “Priority Date” – The date you filed your I-526 application with the USCIS.  If you are a client of Streit & Su, chances are your priority date is the same date you e-signed your application, as we are one of the pioneers in filing I-526 through the USCIS ELIS system.

·         “Cutoff Date”– A date set by the U.S. Department of State.  If your Priority Date is on or before the Cutoff Date, a visa is available for you the moment your I-526 is approved.  If your Priority Date is after the Cutoff Date, you have to wait in line until the USDOS sets a new cutoff date that is on or before your Priority Date.  Chinese media calls the wait “Paiqi,” which literally means waiting period in English.

If you want to know the current Cutoff Date for EB-5, go to http://travel.state.gov/content/visas/english/law-and-policy/bulletin.html, click on “Current Visa Bulletin,” scroll down, and you will see the Cutoff Date for EB-5.  As of January 2015, the Cutoff Date is “Current,” which basically means “no Paiqi.”  That is to say if your I-526 is approved in January 2015, a visa is available for you.  All you need to do is to either go through a U.S. consular or adjust status if you are lawfully residing in America.

To paint you a picture about how thiswill play out, let’s assume Paiqi happens in June 2015, and a Cutoff Date is set onSeptember 15, 2013.  Ms. Liu is an investor from Xianyang, Shaanxi Province, P.R. China.  In July 2014, she retained Streit & Su to help with her EB-5 application sponsored by a regional center.  After finalizing the documentation, Ms. Liu’s I-526 was filed electronically on September 15, 2014 so her Priority Date is September 15, 2014.

Ms. Liu asks, “Does that mean I will have to wait one year after the I-526 is approved before I can apply for a visa?”  The answer is: maybe, but unlikely.

According to the data published by the USCIS on December 23, 2014, it takes 14.7 months on average for the USCIS to decide whether or not to approve your I-526.  Let’s say Ms. Liu’s I-526 is approved 16 months after it was filed, so all we need to know is whether there is a visa available for Ms. Liu on January 15, 2016.

Remember, while Ms. Liu’s I-526 is being scrutinized by the USCIS, the Cutoff Date will move forward as another 10,000 visas, give or take, will be made available on October 1, 2015, when the new fiscal year commences.  We don’t know how far the Cutoff Date will move, but it may move pass September 15, 2014 (Ms. Liu’s Priority Date).  In that case, Ms. Liu does not need to wait at all.  A visa is already available on the date her I-526 is approved.  Even if the Cutoff Date, for some reasons, does not move pass September 15, 2014 until October 1, 2016, Ms. Liu will only wait 9 months before a visa is available.

That is not to say Ms. Liu or anyone who filed their I-526s in 2014 should just forget aboutretrogression.  If Ms. Liu has a son that is already 20 years and 9 months old as of the Priority Date, the son is very likely to “age out” while Ms. Liu is waiting for a visa, thereby causing the son to lose his beneficiary status.  For more, click here for EB-5 visa retrogression’s impact on child beneficiaries.

We believe the above communication may be of interest to our clients and friends of our firm. However, such communication is for general information only. It is not, neither is it intended to be, a comprehensive analysis of the matters presented and should not be relied upon as legal advice. Should you have a specific question, please contact an attorney at Streit & Su PLLC.