在2017年6月与7月间,国家签证中心(“NVC”)对大量之前已收到案件审核完毕确认信并在等待安排面试的移民签证案件发布了的新的通知。 值得您注意的是,从2016年10月起,NVC开始根据美国国务院颁布的签证排期表中的申请递件排期表(表B)的截止日,来发送缴费通知和启动移民签证的案件处理。但是这些最新的通知却向之前已经被NVC审理完毕的案子再次发出确认案件由美国移民局转移到了NVC,并要求申请人提交移民签证申请和支持文件的通知。

现在我们已经澄清这些通知是错误的,NVC目前正在更新收到这些错误通知的案件的信息。这些案件是指那些之前已经收到NVC确认案件审核完毕,并且优先日已经在表B截至日期前的案件。我们已经收到确认,在以上情况下收到的NVC错误的通知(告知案件刚被转移到NVC或者再次要求申请人递交申请文件)可以会被忽略。

在NVC审查每个案件的状态后,如果以前接受的任何文件需要重新提交,NVC将向代理人发送通知。除此之外,之前已经完成审核并等待移民签证面试的案件将按之前案件审核完成的日期为准重新返回等待面试的队列,并且NVC会给申请人及其律师/代理人发送新的通知信。

NVC将会在这些受到影响的案件恢复后提供确认,届时,NVC将能够更好地回答有关具体案件状态的详细问题。NVC预计该过程大约需要两周时间。 GT将继续更进,并提供关于NVC进展情况的更新。请订阅此博客以获取更新。

In June/July 2017, the National Visa Center (NVC) issued notices for a large number of the immigrant visa cases, which had been previously confirmed completed and awaiting interview scheduling by NVC. As a reminder, in October of 2016, NVC began issuing immigrant visa fee bills and processing cases when their priority date became current based on Chart B ‘Dates for Filing’ of the bifurcated U.S. State Department Visa Bulletin (Click here for Chinese version).  However, the newly issued notices for the previously completed cases confirmed that the I-526 petition was transferred from USCIS to NVC; and requested the submission of the immigrant visa applications (Forms DS-260) and all supporting documents anew for each one of these cases.

We have now received clarification that these notices were issued in error. NVC is currently in the process of updating the information regarding such cases, where the submission was already made and acknowledged completed by NVC, if the case priority date has again become current per Chart B of the Visa Bulletin. We have received confirmation that NVC’s notification regarding application and document requests for such cases may be ignored.

After NVC reviews each case’s status, NVC will send instructions to the agent if any documents that were previously accepted need to be re-submitted. Otherwise, cases that were completed and waiting for an interview appointment will return to the interview queue under their original completion date and applicants and their attorneys/representatives will receive a new notification letter.

The NVC will confirm when these previously retrogressed cases have been restored, at which time NVC will be better able to answer detailed questions about a specific case’s status, which, based on the agency’s estimate, should take approximately two weeks. GT will continue to monitor the situation and provide updates regarding the NVC’s progress.  Please subscribe to this blog for updates.

*Not admitted to the practice of law.

The Invest in the USA (IIUSA) EB-5 Conference, which took place on Oct. 10-11, 2016 in Los Angeles, California, featured Charlie Oppenheim, Chief of the Visa Control and Reporting Division of the U.S. Department of State as one of its speakers. Mr. Oppenheim discussed the movement of priority dates for the mainland China born EB-5 investors.  Specifically, Mr. Oppenheim shared that the December 2016 Visa Bulletin will see the Final Adjudication (Chart A) cut-off date move forward slightly to March 22, 2014.  The November 2016 Visa Bulletin, which was published last week, likewise saw a slight advance of the Chart A cut-off date to March 8, 2014.  As we previously reported, NVC is expected to reach out to mainland China born EB-5 immigrant visa applicants in order to initiate the immigrant visa process based on the Dates for Filing Chart (Chart B) of the monthly Visa Bulletin, where the cut-off date has remained June 15, 2014.

Importantly, USCIS announced that applicants for adjustment of status in the EB-5 category must use the Final Adjudication priority date chart (Chart A) to determine eligibility for adjustment of status in the month of November, whereas the remainder of the employment-based adjustment of status applicants may use the priority dates as indicated in Chart B.

Additionally, at a recent meeting with the American Immigration Lawyers Association (AILA) State Department Liaison Committee, the State Department provided clarification regarding another important issue for the backlogged EB-5 investors.  Specifically, the State Department  reiterated that the final determination of eligibility of dependents under Child Status Protection Act (CSPA) is made at the time visas are available for adjudication, i.e., based on Chart A.  Therefore, the filing of an immigrant visa application (Form DS-260) or payment of the immigrant visa fee bill in and of themselves do not and will not guarantee that a dependent will not be found to have ‘aged out,’ or become ineligible to obtain permanent residence as the child of the investor.  Instead, this dependent’s age will be calculated by deducting the number of days the I-526 petition was pending with USCIS from the biological age of the dependent at the time of visa availability under Chart A of the Visa Bulletin.  Per State Department clarification, in reviewing this, the submission of the Form DS-260 or payment of the visa fee bill would be considered to satisfy showing that the dependent “sought to acquire” his or her immigrant visa.  This guidance specifically referenced the filing of DS-260 applications and payment of the visa fee bill based on the current priority date in Chart B and did not address the filing and payment made during the period of time when NVC continued to process immigrant visa applications for backlogged cases shortly after I-526 petition approval.  Presumably, proceeding under either scenario should satisfy the “sought to acquire” requirement if the steps were taken within one (1) year of the visa becoming available as determined by Chart A.  We will provide further clarification on this important legal issue as updates become available.

Many of the mainland China born EB-5 investors recently noticed that they no longer had access to the National Visa Center (NVC) online platform for the purposes of immigrant visa fee bill payment, access to immigrant visa (DS-260) applications, as well as other functions.  NVC has confirmed that it is using the Dates for Filing Chart (Chart B) of the monthly Visa Bulletin to initiate case processing.  Because October’s Visa Bulletin shows that for mainland China born EB-5 investors Chart B current priority dates are June 14, 2014 and earlier, NVC indicated that it would not be processing those cases with priority dates later than that indicated in Chart B of the October 2016 Visa Bulletin.

This change in the processing of the immigrant visa applications for mainland China born EB-5 investors by NVC has resulted in the inability of many to proceed with the preparation of DS-260 applications that had been initiated prior to this processing change, as well as the inability to pay the immigrant visa fee bills, complete the DS-260 applications, or to receive from NVC confirmations that all of the documents in connection with the DS-260 application have been received.  Per NVC instructions, in the month of October, only those mainland China-born applicants whose priority date is June 14, 2014 or earlier are able to proceed with immigrant visa processing upon being contacted by NVC, and each month NVC will reach out to those applicants who fall within the cut-off dates within Chart B of the Visa Bulletin.  Importantly, for those cases that were previously filed to NVC but are no longer available for processing based on Chart B cut-off dates, NVC indicated that it would issue notices confirming receipt of the application and materials.

In addition, the State Department confirmed that it is working toward modernizing its online platforms and has pointed to the Spring of 2017 as a target to go live on a completely new portal which will incorporate all of the separate online elements currently available, such as visa fee bill payment, DS-260 submission, case status look up, and many other elements.

Beginning on Monday, Feb. 22, 2016, EB-5 investors with approved I-526 petitions will be able to contact the National Visa Center’s (NVC) newly created EB-5 Investor Assistance Desk. Customers with visa processing questions can send their inquiries to the following email address: NVCeb5@state.gov. Inquiries will be answered by a team of professionals at the NVC specially trained in EB-5 investor petitions. Customers with questions on derivative applicants will need to attach documents that prove the derivative’s relationship to the primary applicant.

It is important to note that the NVC’s application process for submitting civil, financial and supporting documents will not change. In order to qualify for an immigrant visa and schedule an interview at an overseas consulate, these documents must still be submitted in one package according to the instructions. The new email box is only designed to respond to case status inquiries and answer questions on EB-5 immigrant visa processing.

The NVC’s announcement comes as a welcome to EB-5 investors who are experiencing numerous issues while processing for an immigrant visa. Among some of the challenges EB-5 investors face at the NVC stage are delays in the issuance of Fee Bills, missing Fee Bills for derivative applicants, misspelled names on Fee Bills, and problems accessing DS-260 applications and paying Fee Bills  on the NVC website. Read more about problems at the NVC on Greenberg Traurig’s EB-5 Insights blog. Those EB-5 investors processing for immigrant visas will soon be able to turn to the new EB-5 Investor Assistance Desk for much needed assistance.

The global demand for non-immigrant U.S. visas skyrocketed during the COVID-19 health emergency, when travel was halted and U.S. embassies and consulates closed. Even after reopening, U.S. embassies and consulates are still reporting significant delays in many locations including Brazil, India, Mexico, and others. More recently, the U.S. State Department announced that new processing initiatives, including Saturday visa appointments at some consulates in India, and more visa interview waivers, have addressed these delays. While the wait times at many consulates have dropped significantly, the wait time is still long and continues to affect business and leisure travelers. The most severe wait times often impact B-1 business and visitor visas, which the State Department has determined to be “lower priority” than other types of visas such as student or employment visas, such as the H-1B, L-1, and so forth. For example, the current wait time for a B-1/B-2 visa in Mumbai is 707 days; in Chennai, it’s 640 days. The wait period for H, L, O, P, Q visas is 69 days in Mumbai and 224 days in Chennai. Applicants can track general visa wait times on the State Department website.

Immigrant visas, otherwise called “green cards,” were also severely impacted by COVID-19 shutdowns but still remain at an all-time high, which is keeping families apart and businesspeople outside the United States. According to the State Department’s “National Visa Center (NVC) Immigrant Visa Backlog Report,” more than 400,000 cases are pending at the National Visa Center waiting for immigrant visa interviews at a U.S. consulate.

In a recent bipartisan letter to the State Department, U.S. Sens. Amy Klobuchar, Dan Sullivan, Jacky Rosen, John Cornyn, Cory A. Booker, and Jerry Moran stressed how these delays are severely impacting U.S. businesses and universities in the United States. This also has a financial impact on the nation. While the letter acknowledges the administration’s effort to decrease these wait times, it still urges the State Department to continue to take important steps to decrease the wait times even further and also requests that the State Department respond to these concerns by March 10, 2023.

On Oct. 4, 2021, USCIS updated its EB-5 website and issued an alert regarding the current lapse of the EB-5 Regional Center Program. The Regional Center Program (the “Program”) has been lapsed since June 30, 2021, when Congress did not timely reauthorize it. USCIS confirmed on its website several important points for applications after June 30, 2021:

  1. USCIS will not accept a new Form I-526 Petition filed by an EB-5 investor based on a Regional Center investment until Congress reauthorizes the Program.
  2. USCIS will not accept a new Form I-485, Application to Adjust Status to Permanent Residence (the form used by immigrants with an approved I-526 to apply for the two-year green card in the United States), filed by an EB-5 investor and their family members until Congress reauthorizes the Program.
  3. For any Form I-526 Petition and I-485 Application pending as of June 30, 2021, USCIS will continue to hold these applications in abeyance until at least Dec. 31, 2021. At that time, USCIS will reevaluate the practice of holding these cases in abeyance based on the progress of legislation before the U.S. Congress.
  4. For any “Request for Evidence” issued on a Form I-526 Petition or I-485 Application, USCIS has confirmed that applicants should respond by the deadline.
  5. USCIS will continue to adjudicate Form I-829 Petitions for those investors filing to remove the conditions on the two-year green card. EB-5 investors can continue to file Form I-829, and USCIS will continue to adjudicate these petitions.

What is the status of legislation reauthorizing the EB-5 Regional Center Program?

At present, various Regional Center Program stakeholders have agreed upon terms to reauthorize and extend the EB-5 Regional Center Program. While no text of the legislation is available at this time, the proposed legislation would extend the program for several years, increase the minimum investment amounts to account for some inflation for newly filed cases, “grandfather” and protect existing EB-5 investors from subsequent law changes, and create a framework for Regional Center administration/oversight and investor protections.

It is anticipated that any proposed legislation to extend the Regional Center Program would be attached to an appropriations measure – either an omnibus or Continuing Resolution. Congress passed a short-term Continuing Resolution on Sept. 30, 2021, to continue funding the federal government through Dec. 3, 2021. Because of this, the Regional Center Program likely will not be extended until at least Dec. 3, 2021. This date could be pushed further, should Congress pass another Continuing Resolution to temporarily fund the government beyond Dec. 3.

How long will USCIS hold cases in abeyance?

USCIS updated its website on Oct. 4, 2021, to state that it will hold pending I-526 Petitions and pending I-485 Applications until at least the end of calendar year 2021, absent legislation reauthorizing the Regional Center Program. If no legislation is passed by Dec. 31, 2021, USCIS will reevaluate its policy to continue holding these cases in abeyance. USCIS may well be in contact with Congress and aware of upcoming legislation for the Program’s extension.

What will happen to pending cases if no reauthorization of the Regional Center Program is passed?

It appears that USCIS is monitoring the status of prospective legislation, as it confirmed on the website that it will hold cases until at least Dec. 31, 2021, and at that time, it will reevaluate whether to continue to hold these cases if no Regional Center legislation is passed. Moreover, there is additional proposed legislation to protect EB-5 investors who previously filed cases on or before June 30, 2021. If a significant period of time passes beyond Dec. 31, 2021, and no Program reauthorization is proposed by Congress, then USCIS potentially could deny pending I-526 Petitions. However, at this time, it appears that a bill will be attached to the U.S. Budget Bill to be taken up by Congress in December.

What will happen to EB-5 investors who are not yet in the United States on the two-year green card if there is no reauthorization of the Regional Center Program?

Importantly, there is no “grandfathering” at this time to protect investors who filed I-526 Petitions before June 30, 2021, when the Regional Center Program was authorized. USCIS is holding all I-526 Petitions and I-485 Applications. The National Visa Center (NVC) is holding all pending immigrant visa applications at this time. Before processing can resume on these cases, the Program must be reauthorized by Congress. Again, it appears that a bill will be attached to the U.S. Budget Bill to be taken up by Congress in December.

What will happen to EB-5 investors who are in the United States as conditional permanent residents?

USCIS confirmed on its website that EB-5 investors who are in conditional permanent residence can continue to file Form I-829, even during the lapse of the Regional Center Program. USCIS also confirmed it will continue to decide Form I-829 Petitions.

Due to the coronavirus outbreak throughout China, a number of heavily infected Chinese cities, including Wuhan, are under quarantine, whereas many other parts of China have imposed certain types of travel restrictions in an attempt to limit the spread of the virus. On Jan. 28, 2020, the U.S. Consulate General of Hong Kong & Macau announced that it would operate at reduced staffing levels through Jan. 31, 2020, and all nonimmigrant and immigrant visa appointments scheduled for Jan. 29 have been cancelled.

On the same day, the U.S. Embassy & Consulates in mainland China announced that all U.S. Embassy and Consulates in the country will be closed on Jan. 30 and Jan. 31, 2020, due to the extension of the Lunar New Year Holiday to Feb. 2. As such, we expect those who are scheduled for visa appointments on these days will be notified of the cancellation of their appointments. We will monitor the developments and provide further updates regarding potential consulate closures and/or visa appointment cancellations when available.

Further, given the circumstances, many applicants for immigrant or nonimmigrant visas may not be able to attend their scheduled interviews, even if they are not cancelled, due to either travel restrictions or fear of being infected by the virus by visiting public places. For those clients who have scheduled immigrant visa or nonimmigrant visa interviews coming up, but are unable to attend because of the virus, please reach out to your attorney to reschedule the interviews.

Additionally, please note that pursuant to the February 2020 Visa Bulletin posted by the Department of State, in the EB-5 category, the final action date (Chart A) cut-off priority date for China mainland advanced to Dec. 1, 2014. While the visa bulletin has advanced recently, there is a risk that the final action dates may stop advancing or even retrogress in the coming months, given the volume of cases handled at USCIS, NVC, and U.S. consulates. The virus outbreak is likely to continue to cause delays in processing the visa applications and interview scheduling. The interview cancellations and rescheduling for existing investors and their dependents may contribute to a backlog in interview scheduling. If retrogression occurs, there is a risk that the priority dates of those with scheduled interviews may no longer be current at the time of their desired rescheduled date, and as such those applicants would need to wait for their priority dates to become current again before new interviews could be scheduled.

We will continue to monitor developments and provide updates as they become available.

Read more on U.S. immigration developments with respect to China.

  1. Is there a mechanism by which my child or children may continue to be eligible for immigrant visas as my dependents based on my approved I-526 petition and if so, how does it work?

Yes, the Child Status Protection Act (CSPA) was enacted in order to protect children of petitioners against lengthy petition processing times. Where its protection applies, the dependent’s age is “frozen” under that of 21, allowing the child to obtain permanent residence as a derivative beneficiary of the I-526 petition by the parent. The determination of whether or not the protection of CSPA applies is made when the petition priority date becomes current. At that time, the number of days the petition was pending is deducted from the child’s biological age. Assuming the resulting number is under 21 (even if it’s days shy), the CSPA protections apply and the child has one year to seek to acquire his or her immigrant visa.

  1. What if I have a child who may turn 21 after my I-526 petition has been approved? How do I determine whether my child can avail themselves of the protections of CSPA? If the I-526 petition is approved prior to the retrogression taking effect, the priority date of the petition will still be current. If this is the case, the child’s “CSPA age” would be under 21, and the child would have one year to seek to acquire his or her permanent resident status. The Department of State (DOS) has previously issued guidance that the following can serve to qualify as “seeking to acquire” an immigrant visa:
  • Submission of the I-485 Adjustment of Status Application (“AOS”, “adjustment of status”);
  • Submission of the DS-260;
  • Payment of the immigrant visa fee bill; Submission of a DS-230 to the NVC;
  • Submission of a Form I-824, Application for Following to Join Beneficiary, where the child is located abroad and the I-526 investor is located in the U.S.; or
  • Other Steps

It is important to remember each of those activities listed by themselves would serve to qualify under the CSPA requirements as “seeking to acquire” an immigrant visa, preserving the child’s CSPA protection. Where the petition was approved and forwarded to the National Visa Center (NVC), DOS recommends paying the visa fee bill via cashier’s check, or electronically where possible. Alternatively, case law and DOS guidance show that repeated contacts and requests to DOS, including continuing inquiries and specific expression of intent to proceed can also qualify as satisfying the requirement of “seeking to acquire.” Finally, DOS guidance states that it may be possible to satisfy the CSPA requirements even after the priority date has once again become current after the retrogression announcement.

  1. What do I do if I haven’t received a fee bill from the NVC but my I-526 Petition is approved before July 1, 2019?

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), there may be other ways to preserve the dependent child’s age for immigration purposes, and it is advisable to contact legal counsel.

  1. What do I do if my I-526 Petition is approved after the retrogression cut-off date listed in the Visa Bulletin?

You will be subject to retrogression.  Accordingly, you must continually check the DOS visa bulletin each month to find out if your priority date is current.

  1. What do I do if I received a fee bill from NVC prior to the retrogression cut-off date but my dependents have not?

You can make a 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).

  1. If I have paid my fee bill and filed my DS-260 application, what action can I expect on July 1, 2019?

You will likely not be scheduled for an immigrant visa interview unless your priority date is prior to the cut-off date listed in the DOS visa bulletin.  You will have to continually check the DOS visa bulletin each month to find out if your priority date is current.

  1. 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 the retrogression cut-off date?

No. You will have to continually check the DOS’s visa bulletin each month to find out if your priority date is current and the filing of the adjustment of status application is permissible.

  1. 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 the retrogression announcement. 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 and no other inadmissibility issues arise.  USCIS will hold off on adjudicating the adjustment of status application until your priority date is current.

  1. Where can I check my priority date?

The DOS announces priority dates in each month’s visa bulletin on this website. Additionally, the DOS maintains a “Priority Date Checker” which is an interactive form that will automatically populate the cut-off date applicable for you.  Please note that the monthly Visa Bulletin includes two charts: Chart A provides information regarding final adjudication cut-off dates, whereas Chart B provides cut-off information for AOS filings.  The USCIS website provides monthly updates with respect to whether it is accepting filings based on Chart B.

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

As indicated above, the estimated wait time due to retrogression is approximately 8.4 years for Indian nationals between the time when an I-526 petition is filed and the time when an EB-5 visa becomes available, including the I-526 processing times.

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

Yes.

Continue to monitor our blog for updates as we receive further information from the DOS and USCIS.

For more on EB-5 and India, click here.

Currently, the average processing time for an I-526 petition ranges from 20.5 to 27 months, as shown in the screenshot from USCIS website below. For cases filed with an receipt date of January 29, 2017 or earlier that remain pending with USCIS, the investors or the attorneys of record can submit an “outside normal processing time” service request online or follow up with the Immigrant Investor Program office at USCIS.ImmigrantInvestorProgram@uscis.dhs.gov.

Estimated time range Form type Receipt date for a case inquiry
20.5 Months to 27 Months For use by an entrepreneur who wishes to immigrate to the United States January 29, 2017

After the approval of the I-526 petitions, investors born in mainland China or Vietnam will need to wait until their priority dates become current before visa numbers are available to them. According to Department of State’s Visa Bulletin for April 2019, the Chart A (Final Action Dates) priority date cutoff dates are September 15, 2014 for mainland China-born investors and August 22, 2016 for Vietnam-born investors. This means Chinese investors with priority dates of September 15, 2014 or earlier and Vietnamese investors with priority dates of August 22, 2016 or earlier are now eligible to (1) be scheduled for immigrant visa interviews and issued immigrant visas should they pass the interviews, if they proceeded with consular processing and have previously submitted DS-260 application and civil documents and NVC confirmed case processing complete; (2) file adjustment of status application (AOS) if they are in valid status in the U.S.; (3) wait for the adjudication of their AOS application, if previously submitted. Typically, USCIS will ask that investors/attorneys allow 30 days after the priority date becomes current to submit an inquiry about the AOS application if no update (RFE or Approval Notice) is received for the case. Typically, the AOS application is adjudicated within a few months (if their AOS receipt date is prior to the receipt date for a case inquiry) after the priority date becomes current, at which time, an RFE will be issued for the Chinese and Vietnamese investors for a new I-693 medical examination as their previous ones have expired during the pendency of the applications. After a response to the RFE is filed, USCIS typically takes a few months in approving the AOS application and a conditional permanent resident card will typically be issued within a month after the approval.

The current priority date cutoff date per Chart B (Dates for filing) of the Visa Bulletin is October 8, 2014 for mainland China-born Investors, moved up by one week from the March Visa Bulletin. The priority dates remain current for investors born in all other countries. This means that Chinese investors with a priority date of October 8, 2014 or earlier are eligible to pay fee bills and submit DS-260 applications, whereas investors born in all other countries are eligible to pay fee bills and submit their DS-260 applications, as soon as their I-526 petitions are approved and the cases are transferred to the NVC.  It is important to note that, at times, USCIS allows filing of AOS applications based on Chart B of the visa bulletin – this is of particular benefit to Vietnamese investors who have valid nonimmigrant status in the U.S. and wish to process their green card application without leaving the U.S. However, for the month of April 2019, USCIS does not permit the use of Chart B for filing AOS applications. We will closely monitor this and advise once USCIS allows the use of Chart B.

Chart A: Final Action Dates for Employment-Based Preference Cases

Chart B: Dates for filing Employment-Based Visa Applications

Finally,  the average processing time for an I-829 petition to remove the condition on the permanent residence ranges from 29.5 to 38.5 months, as shown in the screenshot from USCIS website below, though in practice, we have seen cases approved in much faster timeline. For cases filed with an receipt date of February 11, 2016 or earlier that remain pending with USCIS, the investors or the attorneys of record can submit an “outside normal processing time” service request online or follow up with the Immigrant Investor Program office at USCIS.ImmigrantInvestorProgram@uscis.dhs.gov.

Estimated time range Form type Receipt date for a case inquiry
29.5 Months to 38.5 Months Removal of lawful permanent resident conditions (immigrant investors) February 11, 2016