Due to heavy demand, for the first time since the program began twenty years ago a cut-off date might have to be created for the employment-based fifth preference (EB-5) category. The backlog, if it does occur, will affect applicants from China and likely take effect next year. Currently, the EB-5 category is current and visa numbers are available to applicants from any country.
The Department of State made this announcement in the December 2012 visa bulletin and said that based on the current demand for EB-5 visa numbers, a cut-off date might be necessary sometime during the second half of fiscal year 2013.
The EB-5 visa category allows foreign nationals who can make substantial investments to become permanent residents. There are two ways by which one can become an EB-5 investor. The first is through the regular program which requires the investor to make a $1 million investment ($500,000 in a rural or high unemployment area) in a new commercial enterprise which will create at least ten full-time jobs.
The second way is through the pilot program which permits investments in designated regional centers that will create at least ten jobs, directly or indirectly. There are more than 70 regional centers today and most of them require a $500,000 investment. The regional center program was recently extended until September 30, 2015.
The alien investor must file an I-526 petition along with supporting documents showing the investment in the enterprise or regional center and demonstrating that the funds came from a lawful source. Once that is approved, he can file for a conditional green card. The condition will be removed two years after the investor’s admission as a conditional resident upon showing that the required number of jobs was created.
Congress allotted 10,000 visa numbers to EB-5 investors and 3,000 of those to investors in regional centers. Spouses and unmarried children under 21 are included in the count. But the program has drastically grown in popularity in recent years that a waiting line might be created next year. For example, in 2006 the USCIS received less than five hundred I-526 petitions. In 2012, it received over 6,000 petitions.
Most of the demand comes from Chinese nationals. Since the worldwide demand under EB-5 is not enough to reach the quota, unused visa numbers fall across to China, which would have been an oversubscribed country if not for that method of visa allocation. If the worldwide demand for EB-5 visa numbers goes up and the quota is reached, then China would become oversubscribed and a waiting line would be created.
A waiting line means that investors whose priority dates are prior to the cut-off date would not be able to immigrate until an immigrant visa is immediately available. An investor who is in the U.S. must be careful not to lose lawful status in order to be eligible for adjustment of status once a visa is available. Even if the investor has an approved I-526 petition, the investor cannot file for adjustment of status if a visa number is not yet available to him/her.
Right now, nationals of countries other than China can still look to the EB-5 visa as a viable option for permanent residence. In contrast with the family-based and other employment-based preferences where the delays range from several years to more than two decades, the EB-5 category with a total processing time of approximately one year is still one of the fastest routes to a green card.