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Retrogression Alert Issued for EB-5 Category

Maria del Carmen Ramos

Maria del Carmen Ramos

In September 2014, we predicted the EB-5 visa category would retrogress sometime in the 2015 fiscal year. After all, Form I-526 filings have increased by over 500% over the last five years. And the EB-5 category for Chinese nationals became unavailable at the end of the 2014 fiscal year. Our hunch was confirmed by the Department of State (DOS) recently, when Charles Oppenheim, Chief of the Visa Control and Reporting Division at the DOS, predicted that the EB-5 immigrant visa category would retrogress as early as May 2015, but definitely sometime during the 2014-2015 fiscal year.

Each year, Congress limits the number of people who can become permanent legal residents by limiting the number of immigrant visas that can be issued. Someone here on a nonimmigrant visa cannot adjust to an immigrant visa unless there are still visas available for that category. Each month, the DOS publishes a bulletin–the Visa Bulletin–that notifies the public whether there are visas available for each of the different categories with caps.

If the Visa Bulletin lists a date for a particular visa category, that means there are visas available but only for immigrants whose “priority date” is before the date listed in the Visa Bulletin. Except for employment-based visas requiring a labor certification, the priority date is the date the immigrant visa petition is filed. So if the Visa Bulletin for this month lists “01JUN12” for a particular category, that means visas are only available for immigrants who filed their I-130, I-140, I-526, or I-360 by May 31, 2012. It also means that the wait for that category of visas is approximately 30 months. Ordinarily, the dates in the Visa Bulletin move forward (as the backlog of visa petitions is processed).

Sometimes, however, the dates move back in time—or retrogress. Visa retrogression occurs when more people apply for a visa in a particular category or country than there are visas available for that month. Retrogression usually occurs towards the end of the fiscal year, as the number of visas gets close to running out. It is not until the new fiscal year begins (October 1) that a new visa supply is made available, which usually results in the dates on the Visa Bulletin returning to where they were before retrogression occurred. The recent announcement by DOS that EB-5 category may retrogress almost certainly will send attorneys and investors scrambling to file their I-526 petitions as quickly as possible.

If the EB-5 category does retrogress, DOS will create a waiting list based on the date the I-526 is filed. Immigrants who filed their I-526’s first will be first in line when EB-5 visas become available. Of course, there are a number of facts to be taken into consideration when filing an I-526, but if you are considering an EB-5 visa, you should consider consulting with an attorney to determine whether you should file your petition sooner rather than later.

For more information, please contact Maria del Carmen Ramos at 813.227.2252 or mramos@slk-law.com.

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