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发帖数: 1116 | 1 Department of State predicts EB-5 visa retrogression for China
Greenberg Traurig LLP
Dillon R. Colucci
USA
January 13 2014
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Based upon the demand for EB-5 visa numbers and the volume of approved I-526
Petitions, the Department of State has issued a preliminary warning that a
cut-off date may need to be established for China. No other countries in the
EB-5 category will be impacted. If a cut-off date is established, it will
not take effect until sometime after July 2014. This will only affect those
born in mainland China and does not apply to those born in Hong Kong, Macau
or Taiwan.
Despite this preliminary warning, EB-5 investors should think hard before
delaying the filing of an I-526 Petition or taking any other actions
directly related to the possibility of EB-5 retrogression in China. In
December 2012 the Department of State also predicted the establishment of a
cut-off for China, but then reversed itself in February 2013. New EB-5 visas
will become available on the first day of the next fiscal year, October 1,
2014, and the extremely slow processing of I-526 Petitions could spread the
demand for EB-5 visas into the next fiscal year. It is important to note,
the slow I-526 Petition processing times has also impaired the ability of
the Department of State to predict whether EB-5 visa retrogression will
occur.
On the flip side, if U.S. Citizenship & Immigration Services (USCIS) speeds
up I-526 processing the possibility of EB-5 visa retrogression will increase
. As we have noted before, whether or not EB-5 visa retrogression takes
place will have no effect on the processing of I-526 Petitions by USCIS. If
the EB-5 visa does retrogress, it will likely delay individuals with
approved I-526 Petitions from entering the U.S. and obtaining conditional
permanent residency. This also may affect the way jobs are allocated to
those EB-5 investors in the regional center context. Furthermore, once an I-
526 Petition is approved, a child who is a derivative beneficiary of that I-
526 Petition does not receive protection under the Child Status Protection
Act. This could result in some children of EB-5 investors “aging out” if
an I-526 Petition is approved but there are no EB-5 visas available.
In the regional center context, EB-5 visa retrogression may affect EB-5
investors from other countries. Some regional center projects involve loans
which cannot be paid off until each EB-5 investor in that project has had
their respective I-829 Petition adjudicated. Similarly, many new commercial
enterprises in the regional center context have clauses in their operating
agreements which prevent distributions from occurring until every EB-5
investor in that new commercial enterprise has had their respective I-829
Petition adjudicated.
This is not an exhaustive list of consequences and each EB-5 investor’s
situation is unique. Contact Greenberg Traurig’s EB-5 team for further
information. |
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