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Now EB-5 visa is in danger of retrogression

Surge in Chinese applicants may mark historical first for visa.

By Deepak Chitnis

WASHINGTON, DC: For the first time ever, the US Department of State may introduce a retrogression on all EB-5 visa dates from China, creating the country’s first backlog in the 24-year history of the EB-5 visa program.

The announcement of such a drastic measure came in the State Department’s visa bulletin for this month, which states that China’s EB-5 cap for the entire year of 2014 is already dangerously close to being met. China’s EB-5 cap is approximately 10,000, and if the number is met prematurely, it will likely necessitate that priority dates are shifted back, thus creating a Chinese backlog for the first time since the program’s inception.

The EB-5, or Employment-Based preference 5th category, visa was created under the Immigration Act of 1990, and is given to individuals who come to the US and obtain a green card by investing a minimum of either $500,000 or $1 million, based on where they want to go and what their investment funds will go into.

Investors from the Chinese mainland constitute a whopping 80% of all EB-5 applicants to the US, which explains the dire situation that the annual cap and priority dates find themselves in. In the case of EB-5 visas, an applicant’s priority date is the same exact date that the US Citizenship and Immigration Services (USCIS) receives an individual’s I-526 petition firm, which is the essential documentation needed to apply for an EB-5 visa.

It’s important to note, however, that a shift in priority dates has not yet occurred; there merely exists the possibility that such action could be taken. But all signs point to it being a matter of “when,” not “if,” and it looks like this will most likely be taking place in the late summer, possibly as soon as August or September.

If and when retrogression of Chinese EB-5 visa dates does take place, the Department of State and USCIS will come out with provisions and guidance for affected applicants to follow, but such a notice has not yet come from either bureau.