This post was updated April 22, 2015

As you may know, the EB-5 immigrant visa category will retrogress beginning May 2015. Below is a guide to the frequently asked questions we have been receiving since the announcement of retrogression.

1.      What if I have a child who may age-out but my I-526 Petition has been approved? How can I preserve my child’s age for purposes of immigration?

The DOS has issued guidance that the following can freeze a child’s age for the purposes of the Child Status Protection Act (CSPA):

  •  Submission of the DS-260;
  • Payment of the visa fee; OR
  • Submission of a DS-230 to the NVC;

It is important to remember each of those activities listed above will freeze a child’s age for CSPA purposes. Thus, the most cost effective and less timely method is payment of the visa fee bill by cashier’s check as soon as an I-526 Petition approval notice is received. As noted immediately below, all applicants who have received approval of their I-526 Petitions before May 1, 2015, will be issued a fee bill (even past the May 1 cut-off date), thereby enabling those applicants with age-out children to freeze their children’s age for purposes of immigration.

2.      What do I do if I haven’t received a fee bill from the National Visa Center (NVC) but my I-526 Petition was been approved on or before April 30th? 

Chief of the Visa Control and Reporting Division of the U.S. Department of State Charles Oppenheim stated at the IIUSA Conference that fee bills will be sent out for I-526 Petitions approved during the month of April 2015. However, if you have a dependent child who may potentially age-out (those children over the age of 17 at the time of I-526 Petition approval) you should contact us immediately and we will take steps to preserve the dependent child’s age for immigration purposes.

3.      What do I do if my I-526 Petition was approved after April 30th?

You will be subject to retrogression. Accordingly, once your I-526 Petition is approved you must continually check the Department of State’s (DOS) visa bulletin each month to find out if your priority date is current. You can learn all about how to check your priority date here.

4.      What do I do if I received a fee bill from the NVC but my dependents have not?

We will make payment for you and your dependents by sending a cashier’s check via certified mail to the NVC using the case number of the principal application (the investor).

5.      If I have filed my DS-260 and paid my fee bill what action can I expect?

UPDATED (4/22/15) You will likely not be scheduled for an immigrant visa. You will have to continually check the Department of State’s (DOS) visa bulletin each month to find out if your priority date is current. You can learn all about how to check your priority date here.

6.      If I reside in the U.S. in lawful status and have not yet filed my adjustment of status based on my approved I-526 Petition, can I file my adjustment of status after May 1, 2015?

No. You will have to continually check the Department of State’s (DOS) visa bulletin each month to find out if your priority date is current. You can learn all about how to check your priority date here.

7.      I reside in the U.S. in lawful status and have filed my adjustment of status based on my approved I-526 Petition prior to May 1, 2015, what is my status? Can I remain in the U.S. and work and travel? Do I have to renew my advance parole and employment authorization?

Yes, you can remain in the U.S. and continually renew your advance parole (travel permission) and employment authorization so long as your adjustment of status remains pending. USCIS will hold off on adjudicating the adjustment of status application until your priority date is current. You can learn all about how to check your priority date here.

8.      Where can I check my priority date after May 1, 2015?

The DOS announces it in each month’s visa bulletin on this website. You can learn all about how to check your priority date here. Additionally the DOS maintains a “Priority Date Checker” which is an interactive form that will automatically populate the cut-off date applicable for you.

9.      What is the estimated wait time due to retrogression?

As of May 1, 2015, the cut-off date established is May 1, 2013. This equates to a wait time of approximately two years assuming an individual received approval of his or her I-526 Petition on May 1, 2015. Based on DOS announcements, we expect the wait time to progressively increase up to three years or more.

10.  How long do you expect the wait time due to retrogression to be at the start of the U.S. government’s 2016 fiscal year on October 1, 2015?

We expect it to still be approximately two years. However, it may continue to progressively increase up to three years or more.

11.  If I am eligible for cross-chargeability based on my spouse’s non-PRC nationality, are my children also eligible?

Yes.

Your Greenberg Traurig, LLP attorneys will continue to provide you with updates as we receive further information from the Department of State and USCIS.

Tags: EB-5 immigrant visa, EB-5 lawyer, Greenberg Traurig, gtlaw, gt_law, I-526 Petition, Retrogression
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Photo of Kate Kalmykov Kate Kalmykov

Kate Kalmykov is based in our New York and New Jersey offices and has over two decades of experience in business immigration matters. Kate currently Co-Chairs the Global Immigration & Compliance Practice at Greenberg Traurig. In this role, she works with employers of

…

Kate Kalmykov is based in our New York and New Jersey offices and has over two decades of experience in business immigration matters. Kate currently Co-Chairs the Global Immigration & Compliance Practice at Greenberg Traurig. In this role, she works with employers of all sizes across a variety of industries in understanding and complying with the immigration laws relating to the hiring and retention of foreign talent. Specifically, her practice focuses on supporting clients and advising them on temporary and permanent residency immigration options for multi-national executive, business, scientific, and information technology personnel. In addition, her practice provides support to companies in the global transfer of personnel. Known by her clients for her out-of-the-box thinking, responsiveness and hands-on approach, Kate is often called upon to assist in developing immigration options and strategies in the most unique circumstances and to respond to complex Requests for Evidence (RFEs), Notices of Intent to Deny (NOIDs) or to appeal denied cases. Likewise, she has also been instrumental in developing employer compliance programs for DOL related filings including H-1Bs and PERMs, as well as for I-9 employment eligibility verification. To this end, she develops and conducts nationwide I-9 compliance trainings and policy manuals for human resources personnel, advises on best practices for E-Verify employers, provides guidance on avoiding immigration-related unfair employment practices claims and has defended and minimized penalties in immigration-related government audits. Kate regularly works with professionals from the firm’s labor, employment, tax and benefits groups, to provide strategic planning on immigration issues within a cross-border framework.

Kate also has deep experience working on all aspects of the EB-5 immigrant investor program. Kate has worked with real estate developers, private equity funds, and other organizations on applications to designate new EB-5 Regional Centers, applications for pre-approval of EB-5 projects; having projects adopted by existing EB-5 Regional Centers; structuring projects to be EB-5 compliant, the sale of existing EB-5 Regional Centers, preparing template I-526 petitions and advice on structuring direct EB-5 projects. Pursuant to the requirements introduced under the EB-5 Reform and Integrity Act, Kate works with EB-5 Regional Centers, EB-5 Projects, Overseas Migration Agents and Broker/ Dealers to develop internal programs for ongoing compliance and to prepare USCIS I-956, I-956F, I-956,G, I-956H, I-956K submissions. Kate has represented thousands of investors in obtaining their green cards through EB-5 regional center projects, as well as direct EB-5 investment opportunities. She also represented and structured the largest EB-5 offering in the Program’s history and has over the course of her career structured over $12 billion in EB-5 deals.

Within the field of immigration law, Kate is a well-known speaker and author. She is often called upon by various media outlets to comment on topics of business immigration law including the Real Deal, the Wall Street Journal, and Law360. Kate has appeared on numerous TV programs related to immigration law including CNN, the Stoler Report, Vietface TV, and China Business Network. Kate is also a prolific writer on the topic of immigration and has been published in immigration practice handbooks for the American Bar Association, American Immigration Lawyers Association, ILW, and in news periodicals that include the New Jersey Lawyer, the New York Law Journal, the New Jersey Law Journal, USA Today, GlobeSt.com, and the Commercial Observer. At the request of the American Bar Association, Kate co-authored the book “What Every Lawyer Needs to Know About Immigration Law,” a guide for non-lawyers on immigration law practice. She has sat on numerous bar association related committees including the American Immigration Lawyers Association EB-5 Practice Committee, the New Jersey Business Immigration Coalition and has chaired the American Bar Association’s, Committee on Immigration and Naturalization, Section of Administrative Law since 2011. Kate has been recognized in various legal surveys including Chambers Global, New York Super Lawyers, the New Jersey Law Journal who ranked as her as a “New Leader of the Bar,” (formerly 40 under 40) in 2012, NJBIZ “Best 50 Women in Business,” 2019, National Law Review, “Go-To Thought Leader: Immigration Law,” 2022, and Lawdragon 500, Leading U.S. Corporate Employment Lawyers, 2020-2022.

Kate is devoted to pro bono matters and has spent extensive time helping clients fleeing conflict and persecution with asylum applications, applying for and obtaining Temporary Protected Status and Humanitarian Parole.

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