The Day Retrogressed Direct EB-5 Investors Have Been Waiting For

By Matt Gordon ©2021

According to the December Visa Bulletin ( Chinese and Vietnamese direct EB-5 investors should be very happy.  The visa category is current.  The termination of the Regional Center program removed an overwhelming majority of the case load from the USCIS backlog.  Given the relatively small number of direct cases pending, the State Department determined that the visa cap (of 10,000 annually) would not be hit, even when including all the retrogressed direct petitions from both China and Vietnam (the only two countries that had been subject to retrogression).  As in all things, timing is everything and this change will affect Chinese and Vietnamese investors differently depending on a couple of factors.

Firstly, investors with approved I-526 petitions can immediately begin the process of obtaining their lawful permanent residency (aka Their Green Cards).  Most notably, those investors who are currently in the US can file for adjustment of status and obtain work and travel parole.  For those in this group, don’t delay, the window is open and this has the potential to save many many years if not a decade or more.

The next group of investors to benefit are those who have approved I-526 petitions, but are not currently in the United States.  This group can also begin their consular process.  An issue is that this may take a significant amount of time.  The immigrant visa service in China began processing immigrant visas on April 9th, so depending on the amount of time it is taking to get an appointment, this too may be a path to salvation.

The third group are those who have filed direct EB-5 petitions, but have not yet been adjudicated.  This may be the first tangible sign that things are about to change.  Since the Regional Center termination, many in the EB-5 community have been wondering what USCIS has been up to for the last several months, in particular, those adjudicators who are focused on processing I-526 petitions.  With the Region Center program termination, the number of pending cases went from many thousands to probably no more than a few hundred.  At historical processing levels (even with pandemic related issues thrown in), USCIS should have been able to tackle the entire backlog within a few months and keep up the new cases that have been coming in.  What’s very important is that USCIS has previously stated that it changed from processing cases on a FIFO basis (first in first out) to only processing cases for which the visa category was current. That meant that new Chinese and Vietnamese cases were simply set aside.  As of December, with all countries being current, all those historical cases are now eligible for immediate adjudication.  Those who fall into this group should expect adjudicatory action very soon, if it hasn’t happened already.  If this hasn’t happened, one should consider a possible mandamus action as a wake up call to USCIS.

The question for those outside of the US or those who haven’t even started the investment process is whether the EB-5 visa category will remain current.  In conjunction with the effect of the Behring case, returning the investment level to $500,000, it may be very tempting for a Chinese or Vietnamese investor to avail him or herself of not only the lower investment amount, but also much shorter waiting times than what might have been expected just a few months ago.  The timing all hinges on whether or not the Regional Center program obtains reauthorization.  If that happens and the currently mothballed I-526 petitions are returned to the pool, retrogression would return to previous levels.

The Regional Center program lapse has already lasted months.  Every day that goes by makes it that much less likely that it will ever come back again.  Before the 2019 rule change increasing the EB-5 investment level to $1.8 million and $900,000 for those projects located in the more restrictive version of Targeted Employment Areas, the EB-5 industry was a multi-billion dollar sector.  In the years since, it has dwindled to a faction of its former size.  Most of the large developers who fueled the ecosystem of migration agents, law firms and other service providers have simply moved on to other capital sources.  Given the extremely cheap and plentiful debt available to developers generally, the headaches of having EB-5 investors just isn’t worth their bother.   Without the money as the driving force behind the lobbyist and the politicians, it’s just as likely that Regional Center reauthorization will be forgotten.  In the era of multi-trillion dollar legislative fights, the EB-5 program does not seem to justify Senate or House bandwidth.

If this line of reasoning is correct, directly EB-5 investors from China and Vietnam will have the time to file petitions and get adjudicated.  It may take just a few months, from start to finish, if the backlogs are truly eliminated.  For those with the means, now may very well be the time to take the chance on a relatively fast and less expensive path to their coveted Green Card. For those with approved I-526 petitions in hand, step right up, your time has finally come.