Investors from ALL countries (particularly INDIA) to benefit from new USCIS Processing Procedure
On January 29, 2020 the US Citizenship and Immigration Services (“USCIS”) announced a change in Form I-526 (“I-526 petition”) processing procedure. The former first in first out (“FIFO”) processing method is set to change to now give priority to I-526 petitions that are current based on Chart B of the visa bulletin.
The change took effect March 31, 2020 and will impact all pending I-526 cases filed before and after the change. The intent of the change is two-fold:
- Speed up processing for investors of any nationality that is current on Chart B of the Visa Bulletin, which gives priority to ALL nationalities except Chinese
- For countries that are not current on Chart B (only China is not current as of April 2020 Visa Bulletin), the I-526 processing time will be delayed. This is intended to help prevent children from aging out, and this change does not affect the investor’s priority date. Investors from China will likely receive a Green Card in the same timeframe despite the increased I-526 processing timeline
What does this mean for investors outside of China?
As of the April 2020 Visa bulletin ALL investors outside of China will benefit from priority processing. This means all cases filed outside of China will be adjudicated prior to Chinese I-526 petitions that are not current on Chart B. This will expedite the approval of I-526 petitions from all other countries. As priority processing is a new method, we cannot yet calculate the extent of the benefit, but this is the first positive step USCIS has taken towards mitigating the EB-5 visa backlog issue.
Why does India and Vietnam receive Priority Processing?
In October 2015 USCIS added a second chart to the visa bulletin entitled “Dates for Filing” (i.e. “Chart B”), which provides an earlier priority date for retrogressed investors residing in the US to apply for Adjustment of Status. In summary:
- Chart A of the 2020 visa bulletin indicates China, India, and Vietnam are all in retrogression, but
- Chart B clearly indicates investors residing in the US from India and Vietnam are not subject to retrogression when filing a change of status
What’s critical for potential EB-5 investors is the fact that: USCIS has declared that priority processing is based on Chart B. The result of this is as of the April 2020 visa bulletin Indian and Vietnamese investors also will benefit from the new priority processing.
Indian and Vietnamese investors will see further benefits from being current on Chart B if they are residing in the US on a work or student visa, because they can file a Change of Status resulting in the opportunity to obtain travel authorization (“Advance Parole) and Employment Authorization (EAD). This is not only a major benefit to those nearing expiration of a temporary visa, but also allows investors to live and work freely in the US opposed to being confined by the limitations of a work or student visa. As long as India and Vietnam remain current on Chart B of the visa bulletin, the new USCIS processing policy should provide significant benefits to Indians and Vietnamese residing in the US. Potential EB-5 investors will benefit from both priority processing and the ability to obtain Advance Parole & Employment Authorization.
How does this help me if I’m from China?
In theory I-526 processing times are somewhat irrelevant in retrogressed countries, as investors with an approved I-526 petition must wait until their priority date becomes current on the visa bulletin to obtain a visa. For example, if two petitioners of the same retrogressed nationality file I-526 petitions on the same day, they will be eligible to obtain a green card on the same date, even if one receives I-526 approval years before the other. However, I-526 processing times do have a significant impact on the Child Status Protection Act (“CSPA”).
According to the CSPA, each petitioner’s children under age 21 will be subject to an age “freeze”, which allows the duration of an I-526 petitioner’s case processing time to be subtracted from the biological age when determining whether the children can still be considered a dependent of the petitioner. In simple terms, having a longer I-526 processing time will decrease the chance of an investor’s child approaching age 21 to “age-out”, or be considered too old to be a dependent and be denied a green card. Aging-out is not a concern for non-retrogressed countries, but this rule change appears to be very beneficial to many petitioners from China.
What are the effects on Cross-Chargeability?
Investors from retrogressed countries taking advantage of cross-chargeability will also be able to utilize it to obtain priority I-526 processing. For example, a Chinese investor with a Malaysian spouse would be able to utilize the spouse’s country of birth to obtain priority I-526 processing, and the investor may also utilize the current status of the spouse on Chart A of the visa bulletin to avoid retrogression and obtain a green card. USCIS advises investors using cross-chargeability as follows:
If the investor would be eligible to charge his or her immigrant visa to a country other than the investor’s country of birth, the investor should email IPO at firstname.lastname@example.org and identify the foreign state of cross-chargeability and the basis of cross-chargeability (for example, his or her spouse’s country of birth). If the investor provides sufficient information or documentation, IPO will consider visa availability associated with the foreign state of cross-chargeability when determining whether to assign the Form I-526 petition for adjudication.
The March 31, 2020 processing change is the first significant step USCIS has taken towards resolving issues in the EB-5 visa backlog. This does not correct all backlog issues, but industry leaders can applaud any and all changes in the right direction. This change should help clarify the EB-5 investment decision for many investors regarding timeframe, and this change will likely incentivize many potential EB-5 investors to act now. In theory, any investor outside of China, India, and Vietnam should be able to obtain a green card more quickly, and Indian & Vietnamese investors residing in the US could see the most benefit of all.
The principals of EB5 United have worked with more than 1000+ immigrants through the EB-5 program, helping investors and their families obtain green cards and realize their American Dream. If you would like to file your EB-5 application, please contact:
Senior Vice President
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