The coming of a new month once again brings a new Visa Bulletin from the U.S. Department of State—Bureau of Consular Affairs. With fiscal year 2021 more than halfway over, United States Citizenship and Immigration Services (USCIS) has still done little to use up the more than 18,000 visas allocated to the EB-5 Immigrant Investor Program for FY2021, with the Chinese final action date not budging for the entire duration of the fiscal year thus far. Whether USCIS will use the once-in-a-lifetime surge of visas available for EB-5 investment participants remains to be seen, but the current situation looks bleak. If, however, the Biden administration’s proposed U.S. Citizenship Act of 2021 comes to pass, USCIS programs will retain the allocated visas they failed to issue in a given fiscal year, safeguarding this uptick of EB-5 visas.
Indeed, the extra visas are unlikely to benefit Chinese EB5 investment participants. The Chinese final action date has failed to budge since September 2020, and according to a statement from Charles Oppenheim, the chief of the Visa Control and Reporting Division at the U.S. Department of State, Chinese EB-5 investors shouldn’t expect movement for the rest of FY2021. Calculations from November 2020 indicated a queue of about 6,000 Chinese nationals—primary EB-5 investment participants and their eligible family members—with I-526 approval and a current final action date awaiting an EB-5 visa. Oppenheim stated around the same time that he expected only around 3,000 EB-5 visas to be issued to Chinese nationals in FY2021, meaning final action date movement for the world’s most populous country is unlikely in FY2021.
As expected, the April 2021 Visa Bulletin places the Chinese final action date at August 15, 2015, for the eighth month in a row—and hitting the unfortunate one-year milestone is predicted. Chinese EB5 investors trapped in this processing limbo should keep an eye on the progress of the U.S. Citizenship Act of 2021, which proposes a comprehensive overhaul of the U.S. immigration system, including the removal of country-based visa limits, the retention of allocated yet unissued visas, and the exemption of eligible family members from the primary visa pool of employment-based immigration programs. This bill could redefine the EB-5 landscape and the position of Chinese EB-5 investors within it—but without the bill, Chinese EB-5 investment participants are in for a long wait.
Fortunately, Vietnamese investors are in a better position. While still subject to a backlog, unlike Indian investors, who escaped this burden in July 2020, Vietnamese investors can rejoice in the almost two-month jump of their final action date from October 22, 2017, to December 15, 2017. This leap represents the most sizeable EB-5 final action date advancement in several months and indicates a much brighter situation for Vietnamese EB-5 investment participants yet to achieve a current final action date than for their Chinese counterparts.
In terms of dates for filing for EB-5 applicants, only Chinese nationals are affected—in fact, China is the only country that has been impacted by a date for filing backlog in the EB-5 program’s more than 30-year history. While those waiting for final action date advancement have already submitted their visa application and are simply awaiting approval, Chinese EB-5 investors with a priority date later than December 15, 2015, are not even permitted to submit their EB-5 visa applications.
The Chinese date for filing has remained in place since March 2020, when the rapid international spread of the COVID-19 virus initially shut down the world. It’s already been more than a year since the date advanced, but as long as the Chinese final action date stays put, so too will the Chinese date for filing. With the final action date expected to remain at August 15, 2015, for at least the rest of FY2021, the date for filing is similarly expected to stay at December 15, 2015, at least until October 2021.
