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Ending EB-5 Visa Backlogs with Three Legislative Provisions

Ending EB-5 Visa Backlogs with Three Legislative Provisions

Visa backlogs have long been an obstacle for foreign nationals waiting for their visas, including EB-5 Immigrant Investor Program participants. For some, the wait can take years, even if their I-526 petitions have been approved. Fortunately, the U.S. Citizenship Act of 2021 could change the visa backlog for good and possibly eliminate it altogether, which would benefit the EB-5 program greatly.

EB-5 industry experts believe that pushing legislation to reduce these long-standing employment-based visa backlogs would not only benefit EB-5 program participants but the Biden administration as well—clearing the backlogs aligns with a number of the administration’s key interests, including immigration reform and economic improvement.

Specifically, there are three major provisions in the proposed immigration overhaul bill that address EB-5 investment backlogs:

  • Exempting spouses and children from visa caps
  • Eliminating country caps on employment-based visas
  • Reclaiming program-specific unused visas

If the U.S. Citizenship Act of 2021 is passed, these legislative changes would drastically improve the EB-5 program and will quite possibly make visa backlogs a thing of the past. In this article, we take a look at these provisions in greater detail to better understand how they could affect current and future EB-5 investors.

Visa Cap Exemptions for Qualified Family Members

Historically, an EB-5 investor would need to obtain a visa for every member of their household who meets eligibility requirements. Having visa eligibility for spouses and children is a huge advantage for EB5 investment participants, but the program only receives a set number of visas each year. Having to obtain qualifying family visas can elongate the approval process, especially when investors’ visas are stuck in years-long backlogs.

The U.S. Citizenship Act of 2021’s provision for visa cap exemptions would change that. It would eliminate visa caps for all qualifying spouses and children of EB-5 investors. Even though an EB-5 investor and their family would all be eligible for separate visas, their applications would all be counted as just one total available visa for the family unit. This small change would make a huge impact, providing thousands of additional visas each year for more EB-5 investors’ family members.

Eliminating Per-Country Visa Caps

Policies of the past limit employment-based visas by country and have contributed to the current EB-5 backlogs. United States Citizenship and Immigration Services (USCIS) has traditionally capped visa allocation for every country at seven percent of the total annual visas granted to the EB-5 program. Therefore, countries with a higher demand for EB-5 visas are rarely accommodated in a single fiscal year.

More investors from certain countries could immigrate thanks to the Biden administration’s bill, and the long visa wait for approved investors could finally come to an end. Ending the country cap would help expedite the EB-5 visa process.

Recycling Unused EB-5 Visas

Until 2008, the EB-5 visa program went relatively unnoticed by the masses of foreign nationals interested in immigrating to the United States. Although the EB-5 investment program was allocated almost ten thousand visas each year, it was by and large underutilized. Because of this, it consistently granted less than 500 visas in an average year. As indicated by both its overwhelming popularity and lengthy backlogs, that is no longer the case.

The final provision of the immigration reform bill would reclaim visas that were never used, going all the way back from 1992 to today. This could result in many more visas for the EB-5 investment program. The specifics of this provision are still unclear, but it would certainly benefit the EB-5 industry. The current visa backlog would be dramatically reduced if not eliminated altogether.

In sum, the proposed bill offers hope of a streamlined visa process with reduced visa backlogs, potentially freeing up tens of thousands of visas for EB-5 investors. If Biden’s proposed legislative changes in the U.S. Citizenship Act of 2021 are approved, the EB5 investment program will reap huge benefits. Moreover, the COVID-19 pandemic has been detrimental to the EB-5 industry and to the nation’s economy. These provisional changes could very well reverse some of the damage caused by the pandemic.