How Will EB-5 Retrogression Affect You?

There has been a great deal of speculation and concern surrounding the possibility of EB-5 retrogression later this year. If retrogression does occur, it would be the first time in the EB-5 visa category’s 24-year history. Thus, it is no wonder that many investors considering the EB-5 program have questions about the effects of retrogression on them and their families. The following are some of the most common questions we have been hearing on this issue. 

What is retrogression? 

The United States Congress sets limits on the number of immigrant visas available for issuance each year. The EB-5 category has an annual limit of 10,000 visas. Visa retrogression will occur when more people apply for an EB-5 visa than there are visas available. When this occurs, it essentially means that you are placed on a waiting list in order of the date in which your I-526 petition was filed. 

According to the United States Citizenship and Immigration Service, retrogression typically occurs toward the end of the fiscal year as visa issuance approaches the annual category limits. When the new fiscal year begins on October 1, a new supply of visas is made available and usually, but not always, relieves the backlog. 

The State Department publishes a Visa Bulletin every month to notify the public of green card categories that are backlogged and by how long.  The Visa Bulletin is available at here.

When will retrogression occur and how long will retrogression last?

Charles Oppenheim, Chief of the Visa Controls Office at the U.S. State Department recently discussed his outlook for the EB-5 category at the annual Association To Invest In The USA meeting in Washington DC.  He predicted, to the relief of many, that the EB-5 category could stay current through fiscal 2014. 

However, Mr. Oppenheim also said that with current demand, retrogression for Chinese nationals would likely occur before Summer 2015, with a possible May 2013 cut-off date. Nevertheless, the duration of potential delays is unclear, as that can only be determined once a cut-off is established.

However, former President of the American Immigration Lawyers Association, Bernard Wolfsdorf, anticipates a wait of between two and three years. Mr. Wolfsdorf estimates that:

  • For every primary EB-5 investor, there are two beneficiaries (spouses and qualifying children).
  • Thus, roughly 3,500 approved investors will use all 10,000 EB-5 visas for a year.
  • As of September 2013, USCIS showed 7,131 petitions pending.
  • With a rejection rate around 15%, approximately 6,100 of these pending petitions will be approved.
  • This translates to roughly 18,300 immigrant visas needed to meet demand.
  • With only 10,000 visas available annually, a two or three year waiting period seems likely. 

Though, considering I-526 petitions are currently taking upwards of a year to process, the backlog may not add a significant amount of time to the EB-5 process. 

Will I still be able to submit my EB-5 petition?

Yes, even if retrogression occurs, you will still be able to make an EB-5 investment, file your I-526 petition and have your I-526 petition approved.  However, retrogression does mean that following the approval of your I-526 petition, your consulate interview or adjustment of status would need to be delayed until an EB-5 visa is available for you.  The extent of the delay is unclear at this time, and could be very short at first.

Nevertheless, retrogression will mean a longer waiting period before entering the U.S. or obtaining conditional permanent residency. 

What will happen if my child turns 21 while our I-526 petition is pending?

Many EB-5 investors are motivated to acquire permanent residency status so their children can attend American universities. However, retrogression may present an issue for your college-age children. Once your son or daughter reaches the age of 21, they will no longer be eligible for immigration benefits based on their relationship to you. This is known as “aging out.” For applicants whose children are close to aging out, the Child Status Protection Act (CSPA) provides relief in some cases, but not in all. 

The U.S. Congress created the Child Status Protection Act to prevent children from aging out during the USCIS petition approval process. CSPA freezes the child’s age on the date the I-526 is filed through the date the petition is approved. The law allows the child to deduct the time the petition took to be adjudicated from his or her actual age, and thereby potentially still be under the age of 21 at the time of applying for an immigrant visa or filing for adjustment of status in the U.S. 

However, a delay in the issuance of the conditional immigrant visa due to retrogression would also result in a delay in filing the condition removal petition.  Even with the CSPA deduction of time, if your I-526 petition is approved and an EB-5 visa is unavailable for an extended period of time, your child may age out. 

Filing your I-526 petition as far in advance of your children’s 21st birthday is extremely important. Many EB-5 attorneys also note that the longer the I-526 is pending, the longer the child’s age is frozen. Thus, it can be beneficial for Chinese nationals with children close to “aging out” to have the I-526 petition adjudication process take longer. For this reason, it can actually be advantageous for you to receive a Request for Evidence from USCIS or other delays in the adjudication period.

If your children are close to “aging out,” it will be important that you work with an EB-5 attorney to carefully track your children’s ages, to encourage prompt I-526 filing, and for advice on prolonging the I-526 petitioning process. 

What should EB-5 investors do about EB-5 retrogression?

EB-5 professionals recommend filing your I-526 petition as soon as possible. Your filing date will set your priority date, and in the event of retrogression, the earlier your priority date, the sooner you will receive your green card.  

Likewise, if you have a child who is approaching the age of 21 years, you can reduce the possibility of him or her “aging out” by filing your I-526 petition as early as possible to lock in protection under the Child Status Protection Act. 

For more information about how to deal with the problem of EB-5 retrogression, read What To Do About EB-5 Retrogression.

At Jatoi & de Kirby, A.P.C., we know how important it is for you and your family to keep up to date on EB-5 retrogression issues. Our California attorneys can help you handle the problem of EB-5 retrogression in the way that is best for you and your family.  Contact us for more information.

Vaughan de Kirby
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San Francisco California EB-5 Investment Immigration Attorney