On January 20, 2021, President-Elect Joe Biden will take over the White House, signaling the end of the Trump administration. Assuming office in the midst of the most severe pandemic since the early 20th century, Biden will undoubtedly have his hands full, overseeing far more than just the EB-5 Immigrant Investor Program. Nonetheless, the impending change of office has prompted those involved with EB-5 investments to question what changes the Biden administration will bring to the United States’ popular green-card-by-investment program.

Biden’s History with the EB-5 Program

A quick glance back through history reveals that President-Elect Biden has traditionally acted favorably toward the EB-5 program. In fact, he contributed to the program’s creation in 1990. As a U.S. senator representing Delaware, Biden voted in 1990 to pass the Immigration Act of 1990, which proposed the establishment of a residence-by-investment program, in conjunction with a number of other immigration programs. While it’s not possible to derive Biden’s opinion of the EB-5 program specifically based on his support for the act, it can at least be assumed that he didn’t oppose it.

The EB-5 program also came up during Biden’s time as vice president in the Obama administration. The administration indicated its support for the program, highlighting the economic advantages EB5 investment capital affords the United States, and acknowledged the EB-5 program’s role in creating new employment opportunities in targeted employment areas (TEAs). However, despite the administration’s clear support for the program, it failed to introduce long-awaited changes, including much-needed reform and a permanent reauthorization of the EB-5 Regional Center Program.

How Will the Biden Administration Treat the EB-5 Program?

Biden has not indicated his feelings toward the EB-5 program in recent times, but he has stressed his support of various forms of immigration. Given that the EB-5 program is a somewhat controversial program in the media, Biden may not directly voice his support, but if he lumps the EB-5 investment program in with the rest of his immigration plans, EB-5 stakeholders may enjoy a more favorable EB5 investment environment in the years to come.

Biden Wants to Modernize the U.S. Immigration System

Biden’s website states clearly that he intends to immediately work to modernize the U.S. immigration system, expanding economic opportunity across all 50 states by facilitating various routes of legal immigration. Fostering the EB-5 program and providing the reforms and changes it so desperately needs would certainly help expand economic opportunity across the United States, so hopefully Biden will consider the immense benefits of EB-5 investment in his immigration endeavors.

Biden Wants to Revitalize In-Need U.S. Cities with Immigration

The Biden administration recognizes the economic, cultural, and social advantages immigrants bring to their new cities. Employment-based immigration is a key factor in fostering entrepreneurship and growth in communities across the United States, including in cities that have suffered major job losses or economic decline over the past years or decades. Since the EB-5 program heavily incentivizes EB-5 investment in TEAs, the program can certainly leverage the benefits of immigration to foster the economic and population growth of in-need U.S. communities, including by creating new full-time employment opportunities. Hopefully, the Biden administration also recognizes this.

Biden Wants to Leverage the Economic Advantages of Employment-Based Immigration

The United States has long prided itself on its spirit of innovation and entrepreneurship, and immigrants contribute immensely to the innovative and entrepreneurial nature of the United States. The Biden administration states on its website that foreign-born workers add around $2 trillion to the U.S. economy each year, and some of the most lucrative sectors of the U.S. economy, including technology, benefit heavily from the contributions of immigrant workers. Biden’s website explains that his government hopes to leverage the benefits of employment-based immigration to further the U.S. economy. Hopefully this ambition includes the EB-5 program, which injects millions of foreign EB5 investment capital straight into the U.S. economy annually.

The EB-5 Program Can Help Rebuild the U.S. Economy

With the world still in the throngs of the COVID-19 pandemic as Biden assumes office, rebuilding the U.S. economy will fall squarely on Biden’s shoulders. Facing the worst economic downturn since the Great Depression, the United States desperately needs foreign capital and successful, wealthy immigrants to help get its economy back on track. The EB-5 program can contribute significantly to “building back better,” as the Biden motto goes, particularly given its focus on TEAs, categorized by higher unemployment than the national average. As Biden steps into the White House, the EB-5 program stands ready to contribute millions in EB-5 investment funds to the U.S. economy, and Biden would be wise to facilitate this valuable source of foreign capital.

Since 1992, two years after the dawn of the EB-5 Immigrant Investor Program, the regional center route of the EB-5 investment journey has been the preferred pathway to the United States for foreign nationals. The EB-5 Regional Center Program’s popularity is attributable to a number of factors, including the following:

• the relative security of making an EB-5 investment through an approved EB-5 regional center with experienced business, investment, and EB-5 professionals
• the freedom associated with not needing to be involved in day-to-day management at the new commercial enterprise (NCE), allowing investors to, for example, make an EB5 investment in a project in Florida but set up home in Oregon
• relaxed job creation requirements that allow investors to count indirect and induced jobs, instead of just direct jobs, toward the minimum 10 jobs their EB5 investment must create

Given the obvious advantages of EB-5 regional center investment, it has become the clear favorite, with most EB-5 investment participants opting for the regional center route. However, regional center investments face one uncertainty that those who invest directly in an NCE bypass: the possibility of termination of the EB-5 Regional Center Program.

The History of EB-5 Regional Center Program Reauthorizations

The problem with the EB-5 Regional Center Program is that it is not a permanent U.S. government program, leaving open the possibility of termination without warning. Considering that the EB-5 Regional Center Program funnels billions of foreign capital directly into new U.S. businesses, generally in rural or high-unemployment areas in need of economic stimulation (also known as targeted employment areas, or TEAs), a sudden termination of the program is almost unthinkable. Nonetheless, while EB-5 investment participants and stakeholders act on the assumption that it will be continually reauthorized, the EB-5 world must acknowledge the possibility, however slim, of an abrupt sunset of the program.

Congress introduced the EB-5 Regional Center Program in 1992, two years after the creation of the EB-5 program itself. It was initially approved for five years until 1997, undergoing periodic reauthorization, typically of a few years at a time, until 2015. Matters then took a turn toward chaos, with the appropriations process leading to short-term reauthorizations of just a few months at a time. Bundled in with a myriad of other government funding bills and immigration programs, the EB-5 Regional Center Program fell victim to bureaucratic inefficiency, with deliberations on other programs impacting the reauthorization of the lucrative Regional Center Program.

As of January 2021, the latest EB-5 Regional Center Program sunset date suggests Congress may be gearing up to consider the program independently. Since 2015, the program has typically been reauthorized for only a few months or until the next September 30, which marks the end of the fiscal year. With the most recent reauthorization announced in December 2020, the EB-5 Regional Center Program is set to expire on June 30, 2021, separating it from the rest of the programs in the appropriations bill. Time will tell how Congress treats the program going forward.

What Would Happen If the EB-5 Regional Center Program Were Terminated?

The uncertainty of Congress’s sporadic extensions of the EB-5 Regional Center Program begs the question of what would happen in the event of sudden termination. The EB-5 world has faced this question before, such as in 2012, when a three-year authorization period was coming to an end and EB-5 investment participants were not yet accustomed to constant extensions. When the issue was raised in a January 2012 stakeholder meeting, United States Citizenship and Immigration Services (USCIS) sidestepped the question, responding merely that it did not have a response at the time and would address the matter when and if it occurred.

Clearly dissatisfied with UCSIS’s non-answer in January, EB5 investment stakeholders brought the question back in a May 2012 stakeholder meeting, this time receiving a more detailed—although still vague—response. USCIS explained that all regional center designations would automatically expire (i.e., all EB-5 regional centers would automatically be terminated) and USCIS would no longer possess the authority to issue new regional center designation.

The clear lack of policy regarding a possible sunset of the EB-5 Regional Center Program should be construed positively—it suggests Congress has no intention of terminating the popular EB5 investment route. Undoubtedly, if the EB-5 Regional Center Program were terminated, the United States would lose out on billions in foreign investment capital, and lawsuits from disgruntled foreign investors whose pathway to a permanent life in the United States was suddenly pulled out from under them could begin to pile up. That’s not to mention regional center operators and lobbyists, who rally passionately to maintain the popular EB-5 investment pathway, as well as supportive politicians such as Lindsey Graham (R-SC).

IIUSA Government Affairs Webinar

On the subject of government affairs and how they may affect the EB-5 program, industry association group Invest in the USA (IIUSA) is holding a free webinar on February 3, 2021. Interested EB-5 stakeholders should consider attending and even emailing questions in advance to info@iiusa.org. The webinar will cover, among other topics, updates to legislation, the EB-5 reform bill proposed by Senators Grassley and Leahy, ongoing litigation related to the Freedom of Information Act, and the June 30 sunset date of the EB-5 Regional Center Program.

The COVID-19 pandemic ripped through the world mercilessly in 2020, leaving economies and livelihoods across the globe in ruin. Even now in January 2021, the pandemic rages on, with strict lockdowns and rigorous border restrictions from the UK to Japan. The EB-5 Immigrant Investor Program and the thousands of foreign nationals involved in active EB-5 investments were not spared, as the pandemic-induced temporary shutdowns of U.S. embassies and consulates effectively halted the issuance of new EB-5 green cards.

The development and distribution of COVID-19 vaccines, which, as of January 2021, is already being rolled out in developed countries with strong health care systems, such as the United States, is expected to curb the debilitating impacts of the crisis and trigger a much-awaited return to normal life. However, a large-scale vaccination initiative sufficient to bring about herd immunity is likely to be lengthy, and the ultimate result depends largely on the effectiveness of the vaccines.

Until the pandemic has finally subsided and the world can get back to living, those involved in EB5 investments will need to adjust to the ever-changing circumstances as they progress toward a better life in the United States. Unforeseen obstacles are likely in the midst of the COVID-19 pandemic, but fortunately, United States Citizenship and Immigration Services (USCIS) has introduced special accommodations for EB-5 investment participants affected by the COVID-19 pandemic or the resulting restrictions.

Longer Deadlines

The various shutdowns resulting from the pandemic can delay—or, in some cases, render impossible—the execution of certain tasks, even though that may be necessary for the EB5 investment journey. The unpredictable nature of the pandemic further means that new lockdowns or restrictions could be implemented at any time, potentially cutting off an EB-5 investor’s access to resources.

USCIS has responded to this unprecedented period of uncertainty with deadline extensions for requests for evidence (RFEs), notices of intent to deny (NOIDs), and certain other notices the agency sends. Anyone who receives an RFE or NOID between March 1, 2020, and January 31, 2021, is given an extra 60 calendar days to compile and submit a response. Note that the deadline indicated on the notice will be the regular deadline—simply add 60 days to determine the due date under the extended deadline.

Case-By-Case Considerations for Extenuating Circumstances

Various problems related to EB-5 investment and immigration can arise as a result of the COVID-19 pandemic at no fault of the individual investor. USCIS has taken a compassionate stance on such cases, stating it will consider extenuating circumstances on a case-by-case basis.

As an example, the pandemic could impact the ability of a foreign national residing in the United States and participating in an EB5 investment domestically to extend or change their immigration status as initially anticipated. Such an EB-5 investor may present their case to USCIS, who may deem their action or lack thereof as justified given the special circumstances. USCIS added that it may excuse delays in changing or extending immigration status if the delay was similarly due to special circumstances.

Accommodations for Missed Interviews or Biometrics Appointments

As scores of EB-5 investment participants experienced in 2020, attending a visa interview or biometrics appointment is often impossible in the new era of COVID-19. Acknowledging this limitation, USCIS has taken to offering accommodations for those who have missed certain interviews or biometrics appointments as a result of COVID-19 circumstances.

USCIS stresses that EB5 investment participants should aim to make their appointments but recognizes the pandemic could present unsurmountable obstacles to doing so. For example, if an EB-5 investor tests positive for COVID-19 or develops symptoms reflective of COVID-19, USCIS will deny them entry to its facilities. The immigration body similarly advises anyone with an illness similar to COVID-19, such as a cold, to cancel their appointment and reschedule. USCIS will not penalize anyone for rescheduling their appointment for illness-related reasons.

As custodians of public health during the COVID-19 crisis, governmental bodies all around the globe have found necessity in the temporary limitation of their citizens’ personal freedoms. This is most visible through adjustments to social benefits, the application of travel restrictions, and mandates on who can work and where they may do so, as well as by defining what constitutes essential needs.

A collateral consequence of navigating the global pandemic is that these limitations have forced prospective immigrant investors to re-evaluate whether possessing global mobility options remains important at this time. These kinds of decisions among foreign nationals with the resources to invest can have a rippling effect upon an already shaky global economy.

The same holds true for one of the most popular U.S. residency-by-investment initiatives, the EB-5 Immigrant Investor Program. A program implemented in 1990, it has provided hundreds of thousands of immigrant investors with a path toward lawful permanent residency in the United States. Simultaneously, it has garnered billions in foreign investment capital, stimulating job growth and the economy overall in the United States. Since the financial fallout in 2008, the EB-5 program has only seen exponential gains in popularity.

The U.S. Remains a Top Choice for Prospective Foreign Investors

The United States leads the world in COVID-19 infection rates, its last four years of leadership have been less than friendly toward immigrants around the globe, and racial and political tensions seem to have reached a fever pitch. Despite all of this, the nation remains a top contender for foreign investors, and here’s why.

Better Education and Healthcare Options

Access to world-class education and health care are cited as leading reasons foreign nationals keep the United States on their immigration wish list. The United States is the home base of many of the top universities in the world. Real estate investment is better than anywhere else, according to EB5AN survey of 300 wealthy Chinese investors, and Newsweek’s 2020 report shows three of the world’s best hospitals on U.S. soil.

Relative Political and Economic Stability

Despite what seems to its own citizens to be real political strife and economic downturn, compared to the rest of the world, the United States is still a beacon to immigrants from all over. It remains the land of the free, and through the EB-5 program, eligible EB5 investment participants can work and live freely in the country without additional requirements. Furthermore, more often than nearly anywhere else, diligent study and hard work are still rewarded.

A Closer Look at Turmoil Outside U.S. Borders

A number of political circumstances outside U.S. borders are increasingly becoming drivers of EB-5 investment. Latin America, for instance, has always dealt with cyclical politics and economics. But those ups and downs have been exacerbated by COVID-19, and individuals on the high end of the economic gap have sought stability through residency-by-investment programs. Economic and political shifts in Mexico, Chile, and Argentina in particular have left wealthy citizens under critical pressure.

New tax proposals aim to increase the tax burden on the wealthy to help cover costs for oversized and inefficient governments. New policies appear to abandon private capitalism in favor of more socialist-leaning legislation. As a result, high-net-worth individuals are transferring their wealth outside of their home countries in an effort to protect the value of their estates. Moving away from their countries of origin is a strategy to be free from their own governments’ burdening requests.

These foreign nationals who prefer to seek shelter for themselves and their eligible family members in the United States are setting their sights on the E-2 and EB-5 programs. The industry can reasonably expect considerable growth over the next few years from these applicants.

A Win-Win Investment Model

The EB-5 Immigrant Investor Program offers more than just meaningful incentives for foreign nationals—it also provides Americans with crucially important benefits. The jobs and economic wellness attained through the infusion of EB5 investment participants’ capital are key to this symbiotic investment model. This win-win initiative is a viable solution to quelling at least some of the unemployment burden brought on by the pandemic, and its viability has been proven time and time again over the course of its implementation.

The other key variable in this formula is the folks who support EB-5 investors. To maintain the well-earned momentum of this residency-for-investment program, the support systems in place for citizenship planning must remain strong.

The Journey to Residency-by-EB-5 Investment Is Complex

Tying up the normal loose ends of life and packing can end in logistical crises for anyone planning an international move. Being strategic in one’s financial, investment, and other estate planning endeavors adds whole new layers of challenges. Savvy foreign investors not only plan for the short-term but also set themselves up for the long game. For all of these reasons, it is crucial for EB-5 investors to partner with the right support team when they begin their EB-5 investment.

For international families and entrepreneurs seeking out an EB-5 investment team, there are a range of logistical solutions a network of EB-5 professionals should provide. Here are a few of them:

• Accounting and administration
• Corporate formation
• Local tax and regulatory compliance
• Preimmigration tax and legal guidance
• Trust information and establishment

One of the most complex and important aspects of planning a move to the United States is the tax implications it presents. The United States maintains a worldwide income tax model, which means each taxpayer is required to provide information on all U.S. and foreign income on every annual return. Global reporting is necessary for all foreign accounts, assets, and investments, as well. Every business owner and investor understands the importance of delegation and the importance of using trusted advisors and team members.

The COVID-19 viral outbreak that began in early 2020 has been a major catalyst in the continued fluctuations in the U.S. financial markets. All the careful planning and projecting EB-5 investment teams performed for the year has likely gone out the window, and we won’t understand the extent of the pandemic-related disruptions for quite some time. EB-5 investment participants would do well to expect ongoing changes as government and regulation bodies’ responses are rolled out in the coming months, as well.

This kind of uncertainty can be especially unsettling for foreign nationals already deeply entrenched in the EB-5 Immigrant Investor Program process. While the challenges faced in 2020 have been difficult on everyone in the industry, the impact on investors who elected to participate in EB-5 distressed business projects may be compounded.

The State of the Market for EB-5 Distressed Projects

A great number of projects within the recreational and entertainment market sectors that were already struggling to meet the financial projections laid out in their original offering materials are now experiencing even greater difficulties doing so. Additionally, the overall number of distressed or “troubled” businesses – especially in hospitality and real estate – has surely increased in the midst of the COVID-19 pandemic.

Financial Market Strain Can Have Devastating Outcomes

All of these businesses are particularly subject to greater distress following significant reductions in workforce, temporary operation restrictions, and disruptions in various supply chains. The financial markets’ reluctance to issue new bonds and other government-backed financing options is also disrupting the funding landscape for these types of projects. Interest rates are trending historically low as well. Unfortunately, even the most diligent EB-5 investors couldn’t have anticipated a sudden viral outbreak, and the culmination of all of these factors can lead to devastating outcomes.

Unexpected financial market fluctuations such as these have made it even more challenging to sell an EB-5 distressed project seeking EB-5 financing. When EB-5 project construction and operation activities cease, jobs can no longer be created, investors are unable to service their financing obligations, and EB-5 investment participants’ visa eligibility is placed at risk.

EB-5 Distressed Business Investors Need to Remain Well Informed

The savvy NCE operator will likely continue re-evaluating the impact of distress factors and determine whether continuing an EB-5 offering is prudent. Note that every NCE has a fiduciary duty to preserve its EB-5 investment participants’ capital as well as their visa eligibility, and they must do their best to identify the best potential remedies through their analysis. This isn’t, however, a failsafe. Every investor has a responsibility to stay abreast of the goings-on with their project, and a primary source of information is the security disclosure updates they should be receiving.

EB-5 Distressed Business Investors Must Continually Reassess Risk

EB-5 investment participants involved in financed projects are not sheltered from the adverse effects other, similar businesses are experiencing in this relatively volatile time. While the uncertainty stemming from temporary business closures, hiring freezes and layoffs, an uptick in medical leave across the nation, supply chain interruptions on a global scale, and even travel industry restrictions can be absolutely unnerving to an investor in an EB-5 distressed business, it isn’t necessarily the end of their EB-5 journey.

NCEs and other EB-5 operators involved with program-approved troubled businesses should all be providing essential updates for securities disclosures. These documents are the backbone of EB-5 investment participants’ resources for the continuous reassessment of the risks for their projects. Staying well informed allows them to be nimble in their actions and to react according to their own best interests.

Every investor should expect disclosures that specifically pertain to COVID-19 and how it may affect both EB-5 projects and the EB5 investment capital they have contributed to them. All distressed EB-5 projects predating the coronavirus outbreak should be preparing or have already prepared updated securities disclosures. Learn more below about what these disclosures could mean for EB5 investments in distressed projects, when investors should receive them, and what rights and options an investor has.

Troubled Business Investment Offerings Prepared Before the Outbreak

All EB-5 investment offerings are legally required by the U.S. Securities and Exchange Commission (SEC) to provide certain risk disclosures during the signing of an EB-5 investment agreement. This body oversees the execution of the laws and regulations put into place to protect investors in the United States. These disclosures usually cover general risks and cautionary language about the particular uncertainties associated with the industry for that specific project. Look for:

• References to safe-harbors availed to NCEs under the Private Securities Litigation Reform Act of 1995 (PSLRA)
• Disclosures on risks related to public health crises and pandemics

What you won’t see is COVID-19 named exactly. You also won’t see the current severity – or even the nature of – the impacts of this pandemic on the U.S. economy. Now is the time, though, for proper fiduciary handling. The SEC requires full and fair disclosure. Find out what that means below.

Full and Fair Disclosure According to the SEC

In its “full and fair disclosure” guidelines, the Securities Exchange Act of 1934 plainly states that both disclosing untrue statements of material fact and the omission of material facts necessary to prevent previous statements from becoming misleading are expressly prohibited. There are no exact quantitative tests to determine that materiality exists under SEC laws. However, there is a precedent for determining violations – that is, whether there exists the substantial likelihood for a reasonable investor to believe an omission or misstatement was an important factor in the decision to hang on to or sell an investment.

The SEC’s scope on materiality is not narrow. As such, issuers are always advised to disclose supplemental offering documents in any situation where doubt may exist as to whether a material fact might influence investment decisions. NCEs that do not provide disclosures for significant changes (like the ones that are occurring within distressed EB-5 projects across the nation due to the pandemic) are potentially violating Exchange Act laws. Additionally, some COVID-19-related changes may be considered material in the eyes of USCIS adjudicators. Both need to be addressed promptly in order to maintain EB5 investment eligibility status.

Disclosures for Material Changes in an EB-5 Distressed Project

Securities disclosures can be very important in ensuring an investor remains eligible for their EB-5 investment visas throughout their project investment period. USCIS offers some level of flexibility on discrepancies between original project documents and final outcomes because there are always unanticipated events in business. Furthermore, some scenarios that require supplemental disclosures do not actually trigger material change findings by USCIS. That said, discrepancies that do materially affect a project can put EB5 investment eligibility at risk.

How USCIS Defines a Material Change

A material change is defined as one that pertains to the consequential aspects of an EB-5 project. These are the changes that may impact an adjudicator’s decisions. While material changes do not always result in a denial of a petition, they can significantly delay processing. So, what types of material changes can affect an EB5 investment? Here are some of the most common ones:

• Major offering document updates or any other project documentation
• Significant changes to regional center sponsorships
• Clear shifts in business plan elements like project scope and timing or employment structures that could change job creation
• Any investment structure or capital sourcing changes

When USCIS adjudication results in a material change during the EB-5 investment period, EB-5 investors are required to refile their I-526 petition with updated details of the project’s circumstances. There are certain signals within post-COVID-19 securities disclosures that may clue you in to those material changes.

Clues to Material Changes in Post-COVID-19 Disclosures

At first glance, an EB-5 investor should be able to pick up specific references to COVID-19. From there, there are a number of topics that should be addressed within the updated disclosures they receive, including:

• The accuracy of statements that depend on projections and assumptions that the pandemic may have rendered invalid
• Parts of the disclosure that provide explicit notice that COVID-19 may have or has caused expected results to differ materially
• More robust explanations of how the pandemic could present additional risks or exacerbate traditional risks associated with a distressed EB-5 project
• New projections on expected operational changes or the evolution of a project for the successful continuation of the project
• Impacts on job creation or allocation and other direct references to USCIS material changes

These are the clues to potential material changes that could impact an investor’s USCIS processing. Besides these signals to material changes within new disclosure documents, look for an explanation of EB-5 investors’ rights as well as an outline of when changes would require EB5 investment participants’ consent.

What to Do After Updated Disclosure Review

Especially when evaluating next steps for EB5 investment in a troubled business, an experienced EB-5 legal professional is a tremendous help in understanding updated securities disclosures and determining how an investor should proceed if significant material changes need to be addressed with USCIS. More importantly, EB-5 immigration attorneys can offer valuable advice on solutions to insulate an EB-5 investor from becoming ineligible for the program, which might include plans for new sources of funds, effective shifts in organization charts to maintain job requirements, or strategies for capital redeployment.

No matter the impact, EB5 investors should find some comfort in the understanding that the EB-5 Immigrant Investor Program was made for circumstances like this. It was designed and implemented specifically to aid the U.S. economy in less-than-ideal circumstances. It is meant to create jobs in areas where high unemployment exists and to stimulate the local economy, all the while ensuring the best interests of all parties involved. Because of this, everyone is rooting for the success of EB-5 projects. Facing any material changes due to pandemic-related challenges is nothing more than a hurdle for most. Timely securities disclosures and seasoned EB-5 professionals in your corner will mean the best possible outcome for every distressed business investor.

The impacts of COVID-19 on the global economy and the changes to day-to-day life on the planet – from social connections and health care to employment and how, when, and where we travel – are topics of conversation at every table. But, as we do in the face of every crisis, the world continues to adapt. In our personal spaces, we work from home and attend class by Zoom. We stick to online shopping and wear masks when we have to go out.

Likewise, affected industries everywhere have made necessary adjustments, too. A downtick in transportation and hospitality reservations is balanced by the uptick in merchant fulfilment centers, their distribution channels, and medical equipment manufacturing. E-commerce businesses and the industries that support it are booming. And savvy investors see the opportunity. Many are wondering if consumer purchasing habits are likely to be altered permanently by the pandemic.

What does that mean exactly for the EB-5 industry? How can prospective EB5 investment participants tailor their decisions to a quickly and ever-changing U.S. market? Let’s take a cue from current EB-5 investors who are achieving success even during a global pandemic, but first, let’s dive into a brief industry review of 2020.

Redefining EB-5 Operations for Recovery

At the forefront of global markets impacted by COVID-19 crisis are hospitality, retail, and tourism. All three of these industries are a big part of EB-5 Regional Center investment offerings across the United States. Although specific effects vary greatly by project, EB-5 investors on the whole have not been immune to the weight of the pandemic. However, there are clear benefits to immigrating post-COVID-19.

Business Survival Depends on Adaptability

Regional centers and NCE operators have been left scrambling in the face of government and public health mandates to redefine their operations before it’s too late to recover. Many have been forced to delay their plans or shutter their operations for good. The projects that have managed to stick it out have largely done so by making bold and nimble moves, shifting revenue streams from brick-and-mortar to the digital space.

The Shift from Brick-and-Mortar to Digital

Online business has been a true lifeline for adapting businesses, and we’ve seen more than significant growth in the e-commerce industry. The sharp increase in consumer demand for the at-home delivery of everything from groceries to automobiles has consequently driven demand for investment in current-market inventory and the logistics and distribution business sectors.

As custodians of EB5 investment participants’ capital and program eligibility, the EB-5 Regional Centers that remain in operation are diligently working to adapt to market changes while continuing to connect the right project operators with the right immigrant investors.

Basic EB-5 Investment Requirements

There are four basic requirements for successfully obtaining a green card through the EB-5 visa program:

1. Applicants must make a minimum capital investment of $1.8 million (or a reduced investment amount of $900,000 in a rural or high-unemployment area designated as a targeted employment area, abbreviated TEA).
2. Capital must be infused into a program-approved new commercial enterprise (NCE) or a qualified distressed business.
3. The EB-5 investment must preserve or create a minimum of 10 full-time employment positions for U.S. workers that remain viable for a minimum of two years.
4. Lawfully-sourced EB5 investment capital must remain at-risk for the entirety of the investment period.

To avoid (or at least partially quell) the trepidations the fluctuating markets can spur on, many prospective EB-5 investors are choosing experienced industry professionals to counsel them throughout the investment process and best ensure their EB-5 immigration success.

EB-5 Investors Choose Experienced Partnerships for Success

EB-5 networks historically offer investment opportunities across a variety of market sectors. This diversification strategy has been valuable for both aligning with the diversity of client rosters and their individual goals as well as for ensuring the security of the capital they bring to the table. Taking advantage of market trends in this manner provides EB5 investment opportunities that offer greater likelihood for successfully obtaining an EB-5 visa as well as the greatest chances at financial success.

Although the circumstances surrounding the current pandemic have been rather unprecedented, if you step back and take a bigger-picture view, it is easy to see that this strategy still holds strong in the face of challenges brought on by COVID-19. The way EB5AN operates, for instance, hasn’t changed. Our primary goal is still to ensure our clients’ pursuit of permanent residency in the United States, and the projects we elect to present are ones that we are confident will meet (and maintain) all eligibility requirements of the EB-5 Immigrant Investor Program.

Equally important, our next priority is to ensure the security of our investors’ capital. Seeking out projects in sectors that are running strong and projected to continue that way is an obvious choice for EB5AN. For example, more straightforward investment opportunities may involve the creation of at least 10 new jobs at the outset of an project. Or, in riskier opportunities, job creation may depend upon operation of a facility once it’s been constructed.

In either situation, rest assured our team of experienced EB-5 industry professionals will make recommendations based on sound market research and forward-minded analysis. To learn more about how EB5AN helps prospective EB5 investment participants navigate the uncertainties of a post-pandemic immigration scenario, don’t hesitate to reach out!

Industry expert Charles Oppenheim, who heads the United States Department of State’s Visa Control & Reporting Division, provided insights for FY2021 with a virtual keynote address on EB-5 investment visa availability in November 2020. In it, he presented his thoughts on the future effects of consulate activity slowdowns in 2020 and how adjustment-of-status protocols may be a viable solution to the bottlenecking of EB-5 visas expected in 2021 (but likely won’t be implemented as such). He also delved into an area of great interest but that involves little concrete science—EB-5 visa wait times.

As with any investment, very little is ever 100% guaranteed in the EB-5 Immigrant Investor Program. Dealing with predictions on EB-5 visa wait times is a less than absolute science, and that uncertainty lies squarely in the variables—visa availability, backlogs, petition withdrawals and denials, and the time it takes for the investor to develop a petition packet, just to name a few. While published wait times do not officially guarantee a timetable, they should not be entirely dismissed, either. Rough (but educated) estimations are especially helpful for identifying issues with visa availability.

Basic Wait Time Theory: The Law of Supply and Demand

The greatest influencer of EB-5 investment visa wait times is I-526 petition volume. The I-526 petition the submission that initiates the EB5 investment process through United States Citizenship and Immigration Services (USCIS). In the best-case scenario, if many prospective investors file this petition, eventually many prospective investors will be deemed eligible for EB-5 visas. However, the fluctuating volume of I-526 forms to be processed affects the volume of available visas. Increased numbers of eligible investors mean increased wait times due to annual visa quota constraints. Additionally, folks who file early on during a demand surge will experience shorter wait times than those who submit later on.

The Supply of EB-5 Visas Typically Underserves Demand

In a typical fiscal year (October 1–September 30), only around 10,000 visas are earmarked for the EB-5 Immigrant Investor Program. This relatively small number of visas may be allocated to both eligible investors and their qualifying family members. On average, USCIS sees applications for two family members per EB5 investment participant, which amounts to roughly 3,300 visas being available for different EB-5 investments each year.

These visas are also evenly divided among participating countries, regardless of overall population, with 7% assigned to each country of origin. Simple math shows that this leaves about 700 visas available to each country in a normal fiscal year. Any unclaimed visas are reassigned to countries with higher demand for the program. Overall, EB-5 investment visa demand has outpaced supply, thus impacting EB-5 visa wait times.

EB-5 Visa Bulletin Attempts to Balance Supply and Demand

The Department of State (DOS) publishes its Visa Bulletin monthly, wherein it lists cut-off dates by country, which are meant to determine visa availability. USCIS establishes a cut-off date each month for individual countries in which demand significantly exceeds visa availability, which is supposed to ensure fair distribution across all 10,000 visas. Only applicants with priority dates (the date by which USCIS received their application) falling before the cut-off date listed in the bulletin are eligible for EB-5 investment visas or green cards during that month. Eligible applicants with priority dates earlier than the published cut-off date are allowed to apply for permanent residency in the United States. Furthermore, according to USCIS, in order for an adjustment in status to occur, an EB-5 visa must be available to the applicant from the time of submission to the time adjudication is complete.

Visa Retrogression

Visa retrogression is the state in which application volumes (demand) begin to exceed visa availability (supply). For the EB-5 program, if visa retrogression occurs, it usually continues through to the end of the fiscal year but then returns to pre-retrogression levels. Throughout a fiscal year, high-demand EB-5 countries like China or Vietnam may exhaust their allotted limit of EB-5 visas for the year, triggering visa retrogression, but they are also the first candidates for any leftover visas at the end of the year. Thus, most years, once the fiscal year ends on September 30 and the new fiscal allocation takes effect on October 1, dates return to pre-retrogression dates. Additionally, cut off dates typically move forward depending on the current supply and demand of a given country.

Predicting the Ebb and Flow of EB-5 Wait Times

Essentially, a review of the monthly Visa Bulletin offers a glimpse into how long other EB-5 investment participants have had to wait and which priority dates are currently being processed. This is not exactly a concrete foundation for how long it will take to process applications in the future, true. However, considering backlogs and current visa limits in an investor’s country of origin can at least offer insight into how long it will take.

Standard Formula for Calculating EB-5 Visa Wait Times

Here is the industry standard for estimating EB-5 visa wait times:

A ÷ B = C

A: Estimated number of EB-5 investment participants currently in line for a visa
B: Estimated average number of visas available each year (generally ~700)
C: Estimated wait time

Oppenheim’s Use of Standard Calculations

This same calculation is used in Oppenheim’s November 2020 presentation. The last column in the first graphic represents variable A, and the gray bars in the second one equal variable C. Oppenheim’s assumptions in B may be inferred by dividing A by C.

Even Charles Oppenheim’s predictions aren’t fail-proof, however. Let’s take a closer look at why…

The Primary Issue with Oppenheim’s Predictions

Oppenheim’s timing predictions are specifically applicable to a single point in time: October 1, 2020. As petitions are adjudicated daily, the estimated years to visa availability are technically subject to change every day, too. As a queue issue, at any other point in time, the remaining wait time of each individual investor standing in line is uniquely dependent upon how close or far they are from the front of the queue. Thus, instead of saying “the wait time for China,” a better way to conceptualize the queue would be to day “the wait time for a Chinese EB-5 investor who entered the queue at this certain point in time.”

Moreover, Oppenheim’s calculations are specifically based on the very back of the queue on October 1, 2020. EB-5 investors who have been in the queue longer than others will have a shorter wait time than the estimated wait time for the country as a whole. One way to obtain a more accurate estimate is by factoring in data from the DOS on the number of applicants who have earlier I-526 filing dates than a specific investor.

Oppenheim Also Discounts Applicants

Also note that the the first two columns in the above tables do not equal the total inventory of future EB-5 applicants. He only counts EB-5 investors in two categories: USCIS’s pending I-526 petitions and the National Visa Center’s pending documentarily qualified applicants. In other words, those with pending I-485 petitions and those who have already received I-526 approval but are experiencing delays in some other part of the process are left out of the calculation.

While he may have valid reasons for discounting the other applicants, these missing categories of EB5 investment participants can significantly alter wait times. For instance, an estimated 50% of Indian EB-5 investment applicants are working on status adjustments inside the United States.

For those who wish to leverage the extensive experience Charles Oppenheim brings to the table, the real question then becomes whether an EB-5 investor thinks he overestimates or underestimates EB-5 visa wait times in his calculations.

Are Oppenheim’s EB-5 Wait Times Over- or Underestimated?

The easiest way to answer this question is that it’s complicated. Going back to the industry standard equation, A ÷ B = C, Oppenheim’s estimations for C (wait times) are dependent upon the accuracy of the data used in variables A and B. There’s no way around the fact that there must be assumptions about future filings in order to settle on those variables. Anyone who wishes can challenge his calculations with questions regarding future family size and the entire categories of applicants discounted.

An entirely new job description could be made of EB-5 industry professionals laying out tables and playing what-if games with the variables and formulas to estimate how long it will take for EB-5 visas to be processed. A better use of time, however, is to assist individual EB-5 investors on a case-by-case basis, evaluating their unique circumstances to better derive an estimated wait time.

A great starting point for any individual EB-5 investment participant is to understand each of the five basic steps in the EB-5 process and to work with an experienced EB-5 professional to ensure extended waits can be avoided wherever possible.

Five Steps to the EB-5 Investment Process

Generally speaking, from start to finish, an EB5 investment usually takes several years to complete. Below are the five main steps in the process.

Step 1: I-526 Petition Packet Submission

When an EB5 investment participant files their I-526 petition packet and USCIS receives it, the investor is assigned a priority date. Any eligible investor may initiate the process at any time.

Step 2: Awaiting I-526 Adjudication and Approval

The processing of petitions is based on visa availability. Investors from countries that still have visas available are prioritized. I-526 processing often takes years, depending on visa supply and demand and the efficiency of USCIS adjudication.

Step 3: Consular Processing

Applicants who live abroad must visit the closest National Visa Center to become documentarily qualified after receiving I-526 approval. After applying for a U.S. green card and undertaking a visa interview, they are eligible to receive an EB-5 visa, if available.

Step 4: I-485 Petition for Adjustment of Status

Once the previous steps have been completed, EB-5 investment participants already living in the United States may file an I-485 Adjustment of Status application when visas become available. This is the stage in which the monthly Visa Bulletin becomes relevant. Applicants whose countries have a “current” status in the bulletin are least likely to be at risk for missing the 700-visa limit. For others, this step can also cause delays that span years.

Step 5: Petition to Have Conditions Removed

Within the last 90 days of an EB-5 investor’s two-year conditional residency period, they must submit a Form I-829, which petitions to have their conditions removed and their residency in the United States made permanent.

U.S. financial market conditions have fluctuated wildly in the wake of the COVID-19 pandemic as well as the governmental and regulatory responses that have followed. Existing operations and prospective businesses across a myriad of industries have seen disruptions in both planning and results. While the true extent of pandemic effects has yet to come to light, one thing is certain—significant changes will generally continue at least as long as the COVID-19 crisis does. This can be especially concerning for foreign nationals who are counting on the EB-5 Immigrant Investor Program as a pathway to U.S. permanent residency.

COVID-Related Disclosures Help Potential EB-5 Investors Evaluate Risk

Projects that use EB-5 investment financing are subject to the same adverse effects any other business would be in this comparatively volatile time. Industry and operational uncertainty, permanent and temporary closures, interruptions in supply chains and travel, hiring freezes and extended medical leave among employees—these are only a few of the most important considerations.

As EB-5 investors continue vetting program-approved projects, it is important to understand there are essential disclosures potential partners should be providing to them so that they may properly evaluate investment risks ahead of submission. Prospective EB5 investment participants should expect certain disclosures regarding COVID-19 and its possible impact on both EB-5 investments and on the project as a whole.

Learn more about what these disclosures mean for an EB5 investment, when they should be received, and under what circumstances consent for change is required. First, we provide an overview of new EB-5 investment offerings in the recent economic climate.

EB-5 Operators Adopt a Wait-and-See Approach

Although the COVID-19 pandemic has clearly impacted EB-5 project business and operations, which seems to have led to a further stifling of new EB-5 offerings by NCEs, this wasn’t the only contributing factor. Rather, an addition to recent years of turbulence from changes such as

• A lack of definitive policy determinations from U.S. Citizenship and Immigration Services (USCIS)
• Changes to methodologies and allocation of targeted employment areas (TEAs)
• Substantial increases in minimum investment requirements
• Massive visa backlogs in certain countries
• Political uncertainty in the United States

That said, the uncertainties caused by the global pandemic have essentially become the final straw for may EB-5 operators that hadn’t already slowed, and even a good number of those overseeing the continued success of operating exceptional projects and/or maintaining meaningful relationships with migration agents have come to adopt a wait-and-see approach to new EB-5 investment offerings. This strategy isn’t necessarily a red flag, but instead more likely signals proper fiduciary handling. Additionally, a downturn in the economy doesn’t mean EB-5 investments should discontinue. There are actually a number of benefits from the global pandemic already surfacing. In fact, depending on the project, it may make the most financial sense to invest now. Those operators in an investor’s consideration set who do go ahead with new EB-5 offerings simply have a responsibility to provide the proper disclosures with their offering materials. It is the duty of the investor (and their attorney) to perform due diligence prior to investment.

Legal Obligations of Full and Fair Disclosure According to the SEC

The U.S. Securities and Exchange Commission (SEC) governs by laws, rules and regulations that are designed to protect every investor in the country. One of the core requirements to ensure investor protection is offering documents that contain “full and fair disclosure” of material information as outlined in several federal statutes.

Specifically, the guideline that can be directly applied to prospective EB-5 investors is that the Securities Exchange Act of 1934 prohibits disclosure of untrue statements of material fact and the omission of material facts necessary to prevent previous statements from becoming misleading. There is no hardline quantitative test for materiality under SEC laws, but precedent for evaluating a violation is to determine whether there exists a substantial likelihood for a reasonable investor to consider a misstatement or omission an important factor in the decision to buy or sell a security. So how does that apply to disclosure documents for an EB5 investment offering?

Full and Fair Disclosure within New EB-5 Offering Documents

Within the context of a new EB-5 investment offering documents, there are three hallmarks of full and fair disclosure investors should seek out: cautionary language, investment risk factors, and in the current climate, statements regarding COVID-19.

Cautionary Language and Risk Factors

Offering documents need to include statements of general caution and the various traditional risks and uncertainties associated with the particular type of EB-5 project under consideration. It should also reference in forward-facing statements the safe harbors availed to new commercial enterprises (NCEs) under the Private Securities Litigation Reform Act of 1995 (PSLRA) as well as the Securities Exchange Act itself. NCEs will tailor language to the specific industry under which the project is housed.

Statements Regarding COVID-19

Specifically, in the statements looking forward, the risks and uncertainties a project may be subject to in relation to COVID-19 should exist. Emphasis should also be placed on the accuracy of certain statements that depend upon future events and assumptions. Investors should be able to find notice that COVID-19 may cause expected results to differ materially. The proper documents will also include robust disclosures on exactly how the pandemic might present additional risks and/or exacerbate traditional risks associated with this type of project.

Topics Proper Disclosures May Address

For instance, in addition to disclosure statements traditionally provided, an NCE would clearly disclose how the virus may have caused construction delays on a real estate project or that demand for a hotel project may dwindle following potentially ill effects on the travel and tourism industry due to an additional viral surge. A well-prepared NCE may even provide projections on how they expect operations to change or a project to evolve in various scenarios as the hospitality industry moves through recovery.

What are the impacts upon job creation and allocation? At what points could material changes come into play? Could operational changes lead to material changes? These are all questions that may be addressed within those disclosure documents. Along with potential changes, there should be an outline for an EB-5 investor’s rights and when changes would require their consent. The reason these topics are so important is the potential for material changes to impact USCIS processing of investor petitions.

Material Changes for EB-5 Projects

While some degree of flexibility between original project documents and final outcomes exists with USCIS adjudication of EB-5 petitions, discrepancies that materially affect a project can put an EB5 investment participant’s visa eligibility at risk. Material changes are ones pertaining to significant aspects of an EB-5 project—ones that can affect adjudication decisions. These changes do not in and of themselves equate to petition denial, but the two types of changes that can lead to the biggest processing snags are fund sourcing and business plan elements.

Having an experienced EB-5 professional or immigration attorney review new offering documents and disclosures can help to ensure that solutions are in place that insulate an EB-5 investor for projects that could be negatively impacted by COVID-19 in the future. Additionally, this type of review can confirm the availability of an exit strategy that would allow an EB-5 investor to remain compliant with program eligibility requirements.

From the perspective of an operator’s liability, it is always best practice to disclose to EB-5 investors the greatest amount of meaningful information possible (including updates made necessary by the ongoing pandemic). It is important to realize they are held to a higher standard by the SEC than what USCIS may require.

For this reason, an EB-5 investor is best advised to seek the counsel of an attorney to clarify what information USCIS might deem “material,” exactly how much information should be provided and when, as well as what rights the investor has following the receipt of these disclosures. Ultimately, the proper evaluation of these disclosures will help potential investors more aptly navigate the decision to participate in an EB-5 project.

Foreign investors looking to permanently immigrate to the United States would do well to consider the EB-5 Immigrant Investor Program, which is considered among the fastest and simplest ways to attain U.S. permanent resident status. Those who choose to make an EB-5 investment to gain green cards for themselves and their immediate family members are presented with two options: direct investment in an EB-5 project or indirect investment via an EB-5 regional center. While both options have their merits, the undeniable winner is the regional center route, selected by most EB5 investment participants for its relative security and freedom as well as the easier job creation requirements it affords investors.

The problem is that, unlike U.S. permanent resident status, the EB-5 Regional Center Program is not permanent. While Congress has made the EB-5 Direct Investment Program permanent, its far more popular counterpart remains temporary, with Congress issuing continuous reauthorizations to sustain the massive flows of foreign EB5 investment capital into the U.S. economy. Since the EB-5 Regional Center Program represents a key factor in attracting foreign capital and bolstering job creation, EB-5 stakeholders do not anticipate a revocation of the program, especially given that President Trump spared EB-5 investors from his broad immigration ban in 2020. However, until the overwhelmingly popular EB-5 investment program is made permanent, it will be a constant source of uncertainty in the EB-5 industry.

Back-to-Back Regional Center Program Reauthorizations in Late 2020

Upon each reauthorization of the EB-5 Regional Center Program, Congress determines anew the period of validity, so the program is constantly reauthorized for varying periods of time, ranging from years to a single week. In 2020, the first reauthorization came on September 30, the end of fiscal year 2020, having remained steadily authorized throughout the year until that point.

When the EB-5 Regional Center Program was reauthorized on September 30, it was only for a short two and a half months until December 11, 2020. The Regional Center Program’s reauthorization was bundled in with numerous other government funding bills, and Congress was likely attempting to buy itself more time to deliberate over funding issues for 2021 as the government continues to navigate the devastating effects of the COVID-19 pandemic.

However, two and a half months proved too short. On December 11, 2020, Congress pushed the sunset date of the EB-5 Regional Center Program ahead just one week, setting it to expire on December 18, 2020. This way, the government had one more week to iron out the issues in its funding bills and other government programs heading into 2021.

On December 18, 2020, came the first sizeable EB-5 Regional Center Program reauthorization of 2020. Part of the Consolidated Appropriations Act 2021, the Regional Center Program has been secured through June 30, 2021, alongside various other government programs.

Potential Changes on the Horizon

December 18’s EB-5 Regional Center Program reauthorization simply prolongs the period of validity of the popular EB5 investment program—nothing more. Indeed, this is the typical form Regional Center Program reauthorizations assume. But changes could be coming to the EB-5 program, such as the abolition of country-based restrictions in visa numbers or a major EB-5 reform. A bill proposing the elimination of country caps at United States Citizenship and Immigration Services (USCIS) has passed through the Senate with broad, bipartisan support, which could spell major changes to I-526 processing, particularly for the direly backlogged Chinese EB-5 investment participants. Simultaneously, a bill pushing for major EB-5 reform to strengthen integrity measures, better foster job growth, and more strongly protect EB5 investment participants has been presented in the Senate. One of its proposals is to reauthorize the EB-5 Regional Center Program for longer-term periods, such as several years.

While these much-anticipated changes to the EB-5 program have not materialized in the December 18 reauthorization of the Regional Center Program, Congress has introduced one deviation from the norm. Interestingly, the EB-5 Regional Center Program has been reauthorized until the end of June 2021 as opposed to the end of the fiscal year. This separates the EB-5 Regional Center Program from the other federal spending bills it has been grouped together with and could signal a stronger focus on the EB-5 program as a standalone issue in the future. Perhaps, the reforms the EB-5 program so desperately needs are indeed on the way.

The EB-5 Immigrant Investor Program has been a favorite among foreign investors since its debut in 1990. Established by Congress to funnel foreign capital into the U.S. economy and drive job creation, the program attracts foreign nationals from all over who infuse their EB-5 investment capital into qualifying new commercial enterprises (NCEs), in exchange receiving U.S. green cards for themselves and their eligible family members, assuming their EB5 investment meets all the EB-5 program requirements. Over the years, the program has been responsible for bringing billions in foreign capital to the U.S. economy and securing new jobs for hundreds of thousands of U.S. workers.

In fact, the popularity of the program is the very cause of one of its primary problems: lengthy backlogs for EB-5 investment participants. United States Citizenship and Immigration Services (USCIS) uses country-based caps on annual visa issuances to ensure balance across countries in immigration matters, but with population sizes and immigration demand differing starkly among nations, this policy quickly results in huge backlogs for nationals from certain countries. In the case of the EB-5 program in December 2020, it’s Vietnamese and Chinese EB-5 investors who are subjected to backlogs.

While EB5 investment participants from other countries can simply apply for their U.S. green card after their I-526 petition is approved, Chinese and Vietnamese investors must wait until an EB-5 visa becomes available. Availability is determined by an investor’s priority date—the date on which USCIS received their I-526 petition. Each month, USCIS publishes a Visa Bulletin that outlines the final action dates for petitioners from different countries, and anyone whose priority date is earlier than the indicated date is eligible to receive an EB-5 visa that month.

In 2020, the EB-5 community, just like the rest of the world, was blindsided by the COVID-19 pandemic. The pandemic certainly did not spare EB-5 investors amid its wrath, with temporary shutdowns of U.S. embassies and consulates preventing thousands of investors from completing their visa interview and claiming the U.S. permanent resident status their EB5 investment affords them. Likely also due to the lack of consular activities is the stalling of the Chinese final action date and the slow progress of the Vietnamese final action date. Interestingly, India, which faced a backlog at the dawn of 2020, shot forward rapidly, with the backlog clearing up by July 2020.

The final action dates in January 2021 stand at August 15, 2015, for Chinese investors and September 15, 2017, for Vietnamese investors, with Indian investors remaining “current” for the seventh consecutive month. The Chinese final action date has failed to advance since August 2020, when it moved ahead a single week from August 8, 2015. Not even the earmarking of an astounding 18,000 visas for the EB-5 program in FY2021 at the advent of the new fiscal year on October 1, 2020, could shake the inertia of the Chinese EB-5 final action date. USCIS has an incredible opportunity to issue a previously unfathomable number of EB-5 visas in FY2021 and dramatically shorten the backlogs that have long plagued the program, but so far, it is not acting on this one-of-a-kind opportunity.

Meanwhile, the final action date for Vietnamese EB5 investment participants has moved ahead two weeks to September 15, 2017. While the Vietnamese date, unlike the Chinese one, is moving forward, the progression is disconcertingly slow. The EB-5 world can only hope consular visa progressing resumes quickly and the final action dates begin to shoot forward.

Countries other than China and Vietnam are current in the January 2021 Visa Bulletin, which USCIS signals by entering a C. The dates for regional center investors are listed as U, which stands for “unauthorized,” because Congress had not reauthorized the EB-5 Regional Center Program at the time the figures were drawn up. The EB-5 Regional Center Program has, however, been reauthorized, with a new sunset date on June 30, 2021, so the final action dates for those who have made their EB-5 investment through a regional center should be assumed to be identical to the direct investment dates.

In terms of Chart B, which discloses the date for filing for particularly backlogged countries, China remains the only EB-5 nation without “current” status. With the date for filing staying put at December 15, 2015, for the tenth month in a row, Chinese EB-5 investors whose priority date is later than December 15, 2015, are not even eligible to file their application for a U.S. green card, even if they have already attained I-526 approval. As the EB-5 world hurtles toward the very real possibility of the Chinese date for filing failing to move for an entire year, Chinese nationals with active EB-5 investments can but pray the situation improves.