The American Immigration Lawyers Association (AILA) is reporting to members that on Monday April 21, 2014 Mr. Charlie Oppenheim of the Department of State’s Visa Office (VO) spoke to AILA members Roberta Freedman and Michael Nowlan regarding what the Visa Office is predicting for visa demand and what might be expected in terms of Visa Bulletin movement through the end of this fiscal year, or September 30, 2014.   In terms of EB-5 visa numbers, China could retrogress later this year, possibly August or September 2014.  The Visa Office also stated that “retrogression for China EB-5 in the 2015 fiscal year [10/01/2014-09/30/2015] seems almost inevitable, as there are over 7,000 I-526 applications pending and 80% are from China.”   Currently only 10,000 visas are available each fiscal year in the EB-5 category, but this also includes visas issued to spouses and children of EB-5 investors.  It is estimated that for each investor, there are two dependents.  Thus, 7,000 pending I-526 petitions can translate into much more than the 10,000 visas currently available for EB-5 in each fiscal year.

The retrogression of visa number is based on country of “chargeability,” or country of birth – not country of citizenship.  Therefore, the Visa Office’s prediction, if it becomes reality, will affect those individuals who were born in mainland China (but not Hong Kong, Taiwan, or Macau).   If the EB-5 investor’s spouse was born in a country other than mainland China, the investor and his or her family may be “cross-chargeable” to the spouse’s country of birth and thereby escape the Chinese quota retrogression.

Greenberg Traurig LLP will be monitoring the EB-5 visa numbers closely over the upcoming months.  The public can also view the progress of the EB-5 visa numbers on the State Department’s Visa Bulletin website.