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.
