This post is created to answer the following:
- What is EB-5 retrogression?
- What will happen at the end of the fiscal year to visas that have not been used and how will they be allocated to the “oversubscribed” nations such as China and Vietnam?
- How long will retrogression for Vietnam last and why is July 22, 2014 the cut-off date?
- What is the impact of retrogression on children who are close to turning 21 at the time of I-526 filing?
Each question is answered, in order, below:
- General EB-5 Retrogression
10,000 visas are allocated annually for the EB-5 category and applicants from all countries are treated equally until it appears that the entire annual allocation will be used up during the fiscal year. When this happens, applicants from countries that use more than seven percent (7%) of the worldwide total (also known as “oversubscribing countries”) must wait for a future year’s allocation to be available before they can obtain a green card.
This does not mean that 7% of visas are set aside annually for each country in the world. Nor does this mean that any single country has only 7% of allocated visas annually. All this means is that any one country’s allocation is capped at 7% so long as other countries are taking up available visas. When other countries are not competing, then any visas that are “unused” are allocated to the waiting line in a first in first out (“FIFO”) order exclusive of per-country limits.
Exceeding the 7% Cap
When more than one country exceeds the 7% cap, then the oversubscribed countries are issued cut-off dates designed to let applications from not-oversubscribed countries proceed first. Once qualified applications from other countries have been accommodated, then simple FIFO order is instituted, i.e. oldest priority dates get the first visas until all visas for the year are taken, China being the biggest benefactor.
- Allocation of Unused Visas for Vietnam
Currently, China is at the head of the line for leftover visas, since it has been held back for years and thus applicants from China have the oldest applications on file. Applicants from Vietnam will now find themselves behind longer-pending Chinese applicants as per the FIFO rule discussed above.
Given the situation that Vietnamese applicants are not faced with, the positive is that Vietnam will at least receive 7% of visa allocations a year when they need it and likely will not exceed that cap by very much. If an applicant from Vietnam is held back this year, then he or she will be one of the older Vietnamese applications next year and therefore in a favorable position to receive one of the 700 new visas available to Vietnam at that point. Vietnamese applicants will not necessarily be able to rely on receiving a visa left over from the rest of the world, since thousands of Chinese applicants have earlier claim on any leftover visas.
- July 22, 2014 Cut-Off Date
As of the May 2018 Visa Bulletin, only Vietnamese EB-5 applicants who filed before July 22, 2014 will be eligible to receive an EB-5 immigrant visa. Please see below:
The Department of State, who is responsible for establishing cut-off dates, does not release how priority dates/cut-off dates are calculated or even when and how the priority date will shift. Each month, we check the visa bulletin to check and see if dates are progressed, however, until then, we are working with EB-5 priority date of July 22, 2014 for Vietnamese applicants.
- Impact on Children Reaching 21
As you are aware, once a child reaches the age of 21, he or she is no longer eligible for immigration benefits based on their relationship to the primary parent applicant. This is known as “aging out.” For applicants whose children are close to aging out, the Child Status Protection Act (CSPA) provides relief in some cases, but not in all.
CSPA was created by the U.S. Congress to prevent children from aging out during the USCIS petition approval process. This Act, freezes a child’s age on the date the I-526 is filed through the date the petition is approved. The law allows the child to deduct the time the petition took to be adjudicated from his or her actual age, which allows the child to remain under the age of 21 at the time of applying for an immigrant visa abroad or filing for adjustment of status in the U.S. Once the I-526 petition is approved, the child’s age unfreezes and he or she must seek to acquire permanent residence within one (1) year of a visa becoming available.
Effect of Retrogression
However, when EB-5 retrogresses for a country such as Vietnam, protecting under CSPA becomes more complicated. If the period of retrogression is less than the period of USCIS I-526 adjudication, a child who has turned 21 will likely still be able to immigrate with his or her parent. However, if the visa cut-off date is too far back, the child may still “age out” even after using CSPA to reduce the child’s age. An analysis of CSPA will need to be conducted on a case by case basis at the time of filing Form I-526.
Please note, this post is created solely as general information. You should consult a licensed attorney for legal advice to determine the best course of action for your situation. The experienced EB-5 attorneys at David Hirson & Partners, LLP are available to help you.