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Bill S.386 May End the Country Cap on EB-5 Visas


Since the dawn of United States Citizenship and Immigration Services (USCIS), most immigration programs have been subject to country caps—in other words, only a limited number of visas can be allocated to applicants from a given country in a given fiscal year. Considering the stark population differences among countries—China and Grenada are hardly comparable—this practice has unfairly disadvantaged immigrant hopefuls from high-population nations. The EB-5 Immigrant Investor Program is no different, with EB-5 investment applicants from high-demand countries facing longer wait times due to these country caps.

Every fiscal year, approximately 10,000 visas are allocated to the EB-5 program, representing 7.1% of all EB visas for that year. Among these 10,000 visas, no one country is entitled to more than 7.1%, which amounts to around 700 visas per country. Since applicants can use their EB5 investment to obtain U.S. green cards for their spouse and dependent children as well, the yearly limit of 700 EB-5 visas per country only allows around 300 to 400 immigrant investors per country to start their new, promising life in the United States.

Bill S.386 Offers Hope for Ending the Country Cap

In July 2019, the U.S. government took the first step toward eliminating the discriminatory country caps in the EB-5 program and other U.S. immigration programs by introducing Bill S.386, also known as the Fairness for High-Skilled Immigrants Act of 2019. In 2020, a new version of the bill—Bill H.R.1044 – Fairness for High-Skilled Immigrants Act of 2020—was introduced, and on December 2, 2020, it was passed in the Senate, edging ever closer to the dissolution of USCIS country-based visa limits.

Passing in the Senate is significant, but for a bill of this magnitude, it’s not sufficient to enact the changes. The bill has been sent to the House of Representatives and must gain the approval of both houses to continue. Finally, should both houses pass the bill, it will proceed to President Trump’s desk for a signature, which will officially set it in motion. With broad support from both parties and Vice-President-Elect Kamala Harris as an original cosponsor, Bill S.386 stands a promising chance of passing and ushering in the transformation of U.S. immigration.

What Does the Bill Entail?

If passed, Bill S.386 could redefine the entire EB-5 landscape. The bill would see the country caps on employment-based visas almost completely eliminated, subject to a few conditions. A percentage of the available visas would be reserved for foreign nationals not from the two countries with the largest number of recipients, which, for the EB-5 program as of December 14, 2020, are China (including Hong Kong) and Vietnam. Of the unreserved visas, no more than 85% would be allowed to go to a single country. The passing of this bill represents a significant opportunity for those from China with EB-5 investments, and further improving the situation for Chinese immigrants is the bill’s eradication of an offset that reduces the number of visas that can be issued to Chinese individuals.

If this bill is passed, it will effectively almost void the visa availability processing approach that USCIS adopted in April 2020. The visa availability approach prioritizes the I-526 petitions of applicants from countries with readily available visas and has primarily disadvantaged Chinese investors. If the country caps are removed, significantly more EB-5 visas will be available to Chinese investors, reducing their disadvantage under the visa availability approach.