EB5 Investors Magazine Volume 2 Issue 2 | Page 42

From the Desk of an EB-5 Lawyer by David Hirson In each issue of EB5 Investors Magazine, editorial board member David Hirson addresses developments in the EB-5 arena. With a mix of observation and analysis, attorney Hirson keeps readers up-to-date with all things EB-5. Here are some updates from the first two quarters of 2014. The EB-5 world experienced many events in these first two quarters of 2014. From Canada’s elimination of its immigrant investor and entrepreneur program to culminating discussions that China would reach its visa cap this 2014 fiscal year, these past six months have proven to be very busy. Additionally, USCIS-published data shows that an astounding 6,346 I-526 petitions were received, with 3,699 approved. To date, this is the highest number that the program has ever experienced and is indicative of its continuing viability. Possibility of visa retrogression in China Since the program’s inception in 1990, this employment-based preference has been allotted 10,000 annual visas. Although actual usage of EB-5 visas has never previously reached the allotment of 10,000 visas, the State Department has issued a preliminary warning that a cut-off date might need to be established for China’s EB-5 category at some point during this 2014 fiscal year. If there is a quota backlog for China, Chinese investors will still be able to invest and file their I-526 applications. However, the issuance of the conditional immigrant visa following the successful completion of the consular interview or adjustment of status application will not occur until there is a quota number available for the investor. Such a quota backlog would likely delay Chinese foreign nationals with approved I-526 petitions from entering the United States and obtaining conditional permanent residency. Children who are derivative beneficiaries of the I-526 petition could “age out” if the I-526 petition is approved but there are no EB-5 visas available, as they are no longer accorded protection under the Child Status Protection Act once the I-526 petition is approved. 40 This has created a lot of discussion and anxiety amongst Chinese foreign nationals. Although the comprehensive immigration bill that passed the U.S. Senate would have avoided the quota backlog by removing family members from the EB-5 quota, to date, the bill remains floating in the House. Filing immigrant petitions and concluding cases to finality as soon as possible is important for immigrant visa applicants with potential age-out derivatives. Canada eliminates investor program In February 2014, Canada announced the elimination of its decades-old federal investor programs. All 65,000 applications that were pending would be returned and refunded fees paid. Canada’s cancellation of its immigrant investor program has resulted in many foreign national applicants looking elsewhere to immigrate, with a key alternative being the EB-5 program. E B 5 I n v e s to r s M ag a z i n e