Update on Predictions for the EB-5 China Wait List

EB-5The U.S. State Department previously predicted, in December 2012, that Chinese EB-5 visa applicants may soon be subject to a wait list. Now, in its March 2013 Visa Bulletin, the State Department is changing its prediction–a wait list is not likely:

Currently there is no reason to believe that it will be necessary to establish a China Employment Fifth preference category cut-off date during FY-2013, since demand over first six months of FY-2013 has now averaged out to a manageable level.

Why did Chinese EB-5 demand decelerate during the first half of fiscal year 2013?

One reason is that in 2012 USCIS had issued requests for evidence (RFEs) to regional centers who relied on the “tenant-occupancy” methodology to argue their projects would create U.S. jobs. Essentially, these regional centers were investing in commercial real estate and arguing that the tenants who occupied the space would create new jobs that would count for purposes of proving the 10 jobs required for an EB-5 applicant. The RFEs issued by USCIS asked for proof that these would be new jobs, not just old jobs that relocated to new space, and the ambiguity about these cases slowed down new EB-5 investments.

Another reason for the decelerating EB-5 demand may have been the Visa Bulletin’s self-fulfilling prophecy: concern about a wait list may have convinced EB-5 regional centers to market their projects to nationals of other countries, and may have convinced Chinese to consider immigration to other countries. It’s even possible that the State Department’s new prediction could now accelerate EB-5 filings, creating a wait list at some point in the future.

The State Department still emphasizes that predictions are not guarantees: “The determination of the actual monthly cut-off dates is subject to fluctuations in applicant demand and a number of other variables which can change at any time.”

For more background, see my prior post on the EB-5 China wait list and my article, How to Read the State Department Visa Bulletin.

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