Thursday, January 24, 2013

Chinese Quota Retrogression - Explained



 You have probably heard that the EB-5 quota for China is expected to retrogress in 2013. But what does that mean? Let me break it down for you.

Two-Step Process

To explain retrogression, I need to back up a little and explain how the U.S. greencard process works. There are two main ways that a foreigner can obtain a greencard in the United States: through a family relationship or through an employment relationship.

The application process is a two-step process: first you have to establish that you are eligible for a greencard under the prescribed categories. For example, if your brother is a U.S. citizen ("USC"). He can sponsor your greencard by filing a Form I-130. If your employer is sponsoring you for an employment greencard, they would file an I-140. And, if you are applying for an EB-5 (which is also an employment based visa) you would file an I-526.

This first-step is not subject to any quotas since it is only about the "basis" of the greencard. So in the examples above, the USCIS is looking to see if there is a valid sibling relationship in the I-130; if there is or will be a valid employment relationship in the I-140; and if there is a valid investment that can create the requisite 10 jobs in the I-526.

Once the immigrant petition (I-130, I-140 or I-526) is approved, the second step of the greencard process kicks in. By law, the United States has allocated a set number of immigrant visas (i.e. greencards) for each immigration category. The employment categories (EB-1, EB-2, EB-3, EB-4 and EB-5s) are allocated 140,000 visas a year, of which EB-5s gets 10,000. Any of the 10,000 that was not used up in a given year are handed over to the EB-1 category. And until now, there has never been a year when all 10,000 of the allocated visa numbers were used by EB-5 immigrants.

Cut-Off Dates

However, once a certain visa category is oversubscribed, new rules such as "per country" ceilings and "cut-off dates" enter the picture.

Let's use the sibling case as an example. There is an annual quota of 65,000 visas allocated for adult siblings of USCs. This quota has been consistently oversubscribed for many, many years so the average wait time is over 10 years. This wait time is measured based on the "Priority Date" of your immigration petition filing. So if your USC brother files an I-130 proving his sibling relationship to you, you will receive a "Priority Date" from the USCIS, which is basically when they received the I-130. That I-130 will be approved in about 6 months time. And once you have an approved I-130 in hand, you can then actually apply for a greencard at a U.S. Consulate office IF there are enough visa numbers for that particular visa category for that year. In other words, you have to wait in line for your turn. How do you know it is your turn? The Department of State published a "visa bulletin" every month listing what "Priority Date" petitions they have started processing for visas. These dates are the "cut-off" dates. Here's an example of the January 2013 Visa Bulletin for family-based visas:



F4 is the category for siblings of adult USCs. And we can see that as of January 2013, they are processing approved immigration petitions for siblings with a Priority Date of April 8, 2001 for everyone except those people from China, India, Mexico and the Philippines. These countries are called out because once categories are oversubscribed, any visas for any given country is capped at 7% of that total visa category number. (More on that later.)

Now compare the above with the chart below - also from the January 2013 Visa Bulletin, but for employment-based visas:






Do you see all those "C"s? That is short for "current" - which means, as soon as you have an approved immigration petition in hand, you can apply for a greencard because your visa number is "current" (i.e. there is no backlog).

As you can see, EB-5s (the last row) are current. So if you file for an I-526 and that I-526 is approved, you can take that approval notice and apply for a greencard at your local U.S. Consulate (or, if you are in the United States and in valid status on another type of visa, file an I-485 and "adjust" your status).

The Chinese Quota Retrogression

Ok, that was just the background. Now, because of the popularity of the EB-5 visa, the Department of State recently announced that in 2013, we might actually hit the 10,000 visa ceiling. (Note that this does not mean 10,000 I-526s are being filed: the I-526 is only being filed by the immigrant investor who is making the investment. Once that I-526 is approved, the investor + his or her spouse and the investor's unmarried children under the age of 21 will be eligible to apply for a greencard - so one I-526 will usually result in more than one EB-5 visa being issued.)

And, once the ceiling is hit, there will be people who have an approved I-526 in hand who will then have to wait for their "Priority Date" to become "current" before they can actually apply for a greencard. This waiting in line is what is referred to as "retrogression".

This will, however, at least in the foreseeable future, only impact people from China. This is because, once the quota ceiling is reached, the per country quota of 7% kicks in. So, once the quota is reached, only 700 (7% of 10,000) people per country will be able to get an EB-5 in that year.

Let's say, hypothetically, that 500 people from South Korea and 100 people from Venezuela and 60 people from the United Kingdom and 10,000 people from mainland China apply for EB-5 visas in FY2014. So we are 660 people over the 10,000 quota. However, since each country has a 700 visa quota, everyone from countries other than China will be ok. But of the 10,000 Chinese people, 660 of them with later Priority Dates will spill over to the following year. (Obviously China will not be capped at 700 if there are visas left over after everyone from other countries get their number.)

I hope this helps to clarify the possible China Quota Retrogression you have been hearing about. This has a number of implications if you are Chinese and have a child that is aging out soon, or hope to invest in a direct EB-5 project. This also has implications at the I-829 stage when it is time to remove conditions. I plan to address these issues one by one in future posts.

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