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USCIS Ombudsman: China EB-5 Backlog May Be 10 Years

In case you missed it, the USCIS Ombudsman Annual Report, 2017, reveals some astounding information about EB-5 China backlogs: recent applicants may face waits of 10 years or longer to immigrate:

“The EB-5 program continues to attract high net-worth foreigners on a worldwide basis, and disproportionately from China. As a result, processing times are long and are getting longer, currently at 16 months for Form I-526, Immigrant Petition by Alien Entrepreneur, and 27 months for Form I-829, Petition by Entrepreneur to Remove Conditions on Permanent Resident Status. As of September 30, 2016, DOS reported there are just over 10,000 approved investor petitions awaiting an immediately available immigrant visa. [171] The IPO also reported it received 4,395 Forms I-526 in the first quarter of FY 2017, [172] and attributed this surge to the then looming sunset of the Regional Center program scheduled for December 5, 2016. However, the oversubscription of the EB-5 category by Chinese nationals specifically is significantly larger than it appears. Historical data reveal that, on average, two dependents accompany each principal EB-5 investor to the United States. [173] As such, the roughly 10,000 approved EB-5 petitions represent approximately 30,000 foreign nationals (including spouses and qualified dependents) currently awaiting immigrant visa issuance.”

“Additional examination of Form I-526 data reveals that as of September 30, 2016, USCIS had a pending inventory of 20,804 petitions. [174] With an 81 percent petition approval rate in the first quarter of FY 2017, using the ratio of three immigrant visas for every I-526 petition approved, the oversubscription of the EB-5 category grows even larger, adding another 58,043 eligible investor immigrants in USCIS’ current pending inventory. [175] Taking together the 30,000 likely immigrants currently awaiting immigrant visas with DOS [176] and the pending petitions at USCIS, there are now approximately 88,000 intending EB-5 investor immigrants worldwide—far in excess of the maximum annual statutory allocation of 10,000 immigrant visas to this employment preference category. EB-5 immigrant visas remain immediately available to nationals of all countries except China, whose nationals will likely wait 10 years or longer for their EB-5 immigrant visas due to oversubscription, absent an increase in or recalculation of the annual quota.”

“The Ombudsman will continue to examine the EB-5 program, engaging USCIS and stakeholders as the agency implements any statutory changes, considers regulatory changes, and expands its compliance activities.”

[171] Information provided by DOS (Mar. 22, 2017).

[172] See GAO Report, “Immigrant Investor Program, Proposed Project Investments in Targeted Employment Areas,” supra note 153.

[173] Information provided by DOS (Mar. 22, 2017).

[174] USCIS Webpage, “Number of I-526 Immigrant Petitions by Alien Entrepreneurs by Fiscal Year, Quarter, and Case Status 2008–2016;” https:// www.uscis.gov/sites/default/files/USCIS/Resources/Reports%20and%20 Studies/Immigration%20Forms%20Data/Employment-based/I526_ performancedata_fy2016_qtr4.pdf (accessed Apr. 25, 2017).

[175] Id.

[176] Report of the Visa Office 2016, Statistical Tables, Table V (Part 3), supra note 152.

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