Are EB-5 Visa Backlogs a Thing of The Past?

As you might already know, some current EB-5 investors who have approved I-526 petitions are stuck waiting in a backlog.  Notably, investors from Mainland China can wait several years to get an available visa. However, it finally looks like genuine legislative change could be coming that would help end the visa backlog.

That legislative change would come from President Biden’s proposed immigration overhaul bill, the U.S. Citizenship Act of 2021. The bill aims to implement three provisions, each of which would do a great deal to reduce the visa backlog. If Biden is able to get all three of these provisions included in the bill, the EB-5 program’s visa backlog could be swiftly eliminated and become a thing of the past. So what are these provisions and exactly how will they help eliminate the backlog?

• Ending the Per-Country Cap on Employment Based Visas  Currently no more than seven percent of visas USCIS issues each year can go to a single country. This policy is a large part of why the current EB-5 backlog exists in the first place, as demand, historically, for EB-5 visas has been higher in some countries than others (think India and China, for example). Biden’s immigration bill would eliminate these caps and end the arbitrary limit on investors from a single country. Eliminating this cap would help speed up the process for approved investors who have been waiting years for a visa to be issued.

• Exempting Children and Spouses from the Visa Cap  The great thing about the EB-5 visa program is that it allows an EB-5 immigrant investor to obtain a visa not only for herself, but also for her spouse and children.  Currently, the EB-5 visa program is issued a certain amount of visas which become available each year.  If an EB-5 investor has a family of five who are obtaining visas, this reduces the total amount of available visas by five.  Under Biden’s proposed immigration reform, an EB-5 investor and his or her family, no matter how many visas were issued to the family, would only reduce the total number of available visas by one.  This should free up thousands of additional available visas each year.

• Reclaiming Unused Visas  The most dramatic measure Biden’s reforms aims to implement would be a reclaiming of unused visas from 1992 to the present. While this would apply to a multitude of American visa programs it would be especially impactful for the EB-5 program. The EB-5 program was created in 1992 but until 2008 it was extremely underutilized.  While each year the EB-5 program was allowed to distribute close to ten thousand visas, from 1992-2008 the program issued less than 2,000 each year, and consistently issued less than 500 in a year. Although we don’t know the exact method the bill would use to determine how many unused visas would be reclaimed, it would likely result in tens of thousands of newly available visas for EB-5 investors. Obviously, this would be an  incredible stroke of luck for the Investors who have been waiting years to receive their EB-5 visa and could almost single handedly eliminate the current backlog. 

The full text of the US Citizenship Act of 2021 can be found here.

One thing we know for sure is that clearing the backlog of employment based visas is a priority for the Biden administration. Biden’s proposals to eliminate country caps, exempt immediate family members from visa caps, and reclaim unused visas will immediately improve the EB-5 visa program both for current applicants and for future applicants. 

With the COVID-19 pandemic causing a spike in the U.S. job market’s unemployment rate, a reinvigorated EB-5 program may be just the solution: The EB-5 Regional Center program has injected billions of dollars into the U.S. economy, created hundreds of thousands of U.S. jobs and has done so at no cost to the U.S. taxpayer.  The EB-5 Regional Center program played an important part in helping to boost the U.S. economy out of the 2008 Great Recession.  It can and should be used to help boost the U.S. out of the COVID-19 pandemic. 

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