The most controversial aspect of the EB-5 Immigrant Investor Program is easily the few cases of fraud that have cropped up in the program’s history of 30+ years, harped on by the media despite the immense economic stimulation and job creation the program contributes to the U.S. economy. Within the EB-5 world, however, perhaps the most controversial aspect is the ever-growing backlogs, leaving thousands of investors and their qualifying family members in processing limbo for years despite their ongoing contribution to the U.S. economy.
The foremost victims of processing inefficiencies at United States Citizenship and Immigration Services (USCIS) are Chinese investors, pursuing an EB-5 investment from the most populous country in the world. For the tens of thousands of Chinese investors—and tens of thousands more if dependents are considered—stuck waiting indefinitely, the only hope is to keep checking USCIS’s monthly Visa Bulletin, as applicants whose priority date is earlier than the listed final action date are in line to receive a U.S. green card. But the tumultuous year of 2020 has thrown backlogged EB-5 investors a curve ball, elongating their wait times by an unknown amount.
As of January 28, 2021, the most recent Visa Bulletin is the one for February 2021, which lists the Chinese final action date at August 15, 2015. The problem, other than the fact that this final action date is around four and a half years in the past, is that it hasn’t budged since August 2020’s Visa Bulletin. Although USCIS does not release statistics on the number of EB-5 investment participants with I-526 approval eligible to receive their EB-5 visa, it’s possible to derive this figure through calculations using official USCIS data. Unfortunately for Chinese EB5 investment participants with later priority dates, this calculation doesn’t offer good news.
How Many Chinese Investors with I-526 Approval Are Waiting for Visas?
USCIS periodically provides the number of EB-5 investment participants by nationality who have approved I-526 petitions but whose priority date is not yet current. This information may be useful in its own right but cannot enable prediction of when, and by how much, the final action date may advance again. However, simple logic tells us the number of Chinese investors with approved I-526 petitions and clearance from the Visa Bulletin waiting on EB-5 visas increases with each advancement of the Visa Bulletin and decreases with each EB-5 green card issued to a Chinese investor. Due to the COVID-19 pandemic, the U.S. consulate in Guangzhou has canceled EB-5 visas, issuing precisely 0 since March 2020. Thus, we must focus on the number of additions to the queue.
Based on these figures, the difference between the number of EB-5 investment participants with I-526 approval waiting for their priority date to become current in April 2020 and November 2020, as provided by USCIS, should roughly equal the number of investors with I-526 approval who have been cleared by the Visa Bulletin. Since the figure provided by USCIS for April 2020 is 23,511 and that for November 2020 is 21,253, the difference is 2,258. The calculation gets more complicated than that, however, because spouses and children also take green cards from the yearly EB-5 visa pool. Data from FY2018 shows that dependents accounted for 63.2% of EB-5 visas claimed by Chinese nationals, so we can infer that as of November 2020, roughly 6,136 Chinese nationals were in line to receive an EB-5 visa under the final action date of August 15, 2015.
Given the combined obstacles of suspended visa interviews in China (with no timeline for resumption) and USCIS’s notoriously slow processing speeds, large-scale visa issuances are unlikely. In November 2020, Charles Oppenheim (chief of the Visa Control & Reporting Division at the U.S. Department of State) predicted around 3,000 visas might be granted to Chinese EB5 investment participants in FY2021—enough to supply only half of those eligible with visas. Given these projections, barring a miracle, the Chinese EB-5 final action date is unlikely to budge throughout FY2021. This also suggests USCIS may fail to distribute most of the 18,000+ visas the EB-5 program has been allocated in FY2021, nearly double the typical annual allocation.
