Regional Center Business Journal (05/2020)

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WINNERS AND LOSERS UNDER RECENT REGULATIONS, ADMINISTRATIVE TWEAKS, AND VISA BULLETIN ADVANCES Continued From Page 11

retention or other regulatory changes.

of “leftover” EB-5 visas that backlogged China-born investors may use in the future, thereby speeding up their very long line. After years of continually worse predictions of how long such investors must continue to wait, the March 2020 Visa Bulletin finally turns the tide for them in what is likely to be the first of several significant advances of China’s FAD or of both China’s FAD and its DFF while the EB-5 industry waits for the worldwide market to return.5

Future China-born Investors Might Also Benefit

The size of the incremental movements for China will likely vary significantly as the Visa Bulletin works through progressively smaller peaks in I-526 filings by Chinaborn investors during the fourth quarter of FY2015, the fourth quarter of FY2016, and the third quarter of FY2017, as well as the relative valleys in between. Eventually, as the China-born wait times shrink toward the length of the Vietnam-born and India-born wait times, investors who have been waiting a long time in those countries’ lines will begin to share in worldwide leftovers, but that could still be quite a few years away. In fact, that point may be far enough away that some sort of overall visa relief will likely arrive before China’s line ever shortens to the length of Vietnam’s or India’s. Some backlogged China-born investors might also benefit from priority date 5 As noted in the March 2020 Visa Bulletin, FAD and DFF for China might also occasionally move backward temporarily in some months to ensure that all available visas are used in each fiscal year without using more than are legally available in the first place.

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Future China-born investors will benefit most from anything that shortens their potential visa waiting time, which the new worldwide-impacting $900,000 investment threshold does indirectly. Other regulatory and policy changes will be less relevant in most cases. India-born Investors Benefit Mostly in the Short Term India-born investors already in the United States benefit more than Indiaborn investors living elsewhere, at least in months that USCIS allows the use of DFF by EB-5 investors. In fact, if USCIS could be counted on to continually allow India-born investors in the United States to use DFF to file green card applications early, such goodwill could substantially increase demand among such investors, who otherwise must wait nearly forever in the “gold watch” categories of EB-2 and EB-3. Filing green card applications early allows such investors to receive most immigration benefits short of a green card itself. Other USCIS regulatory and policy changes are not overly significant for India-born investors. Vietnam Faces Impacts Similar to India’s By and large, the cumulative benefits and detriments of these recent changes are similar for Vietnam-born and India-born investors: DFF usage is a boon to those already studying or working temporarily in the United States, but the remaining changes are mostly not helpful. Both Vietnam and India also seem quite far away from eventually

benefiting from the $900,000 threshold’s likelihood of indirectly freeing up additional “leftover” EB-5 visas. Instead, for the foreseeable future, Vietnam-born and India-born investors will merely share the same $900,000 pain as other investors worldwide. Rest of the World Impact is Mostly Negative Those not born in China, India, or Vietnam potentially benefit here or there, but the largest impact is negative. In particular, the detriment of the $900,000 minimum investment requirement far outweighs any potential benefits found elsewhere among the recent changes. One hope for such investors, however, is that USCIS actually does process I-526 petitions from non-backlogged countries much faster than normal, which would allow such investors to obtain their conditional green cards much sooner than they could under current processing times. Conclusion The significant changes at the end of 2019 and the beginning of 2020 primarily benefit those who have suffered the most under the EB-5 Program in recent years: backlogged China-born investors. Regional centers and new and existing investors from non-backlogged countries may find a minor, temporary benefit here or there, but mostly the recent changes seem at odds with their interests. Many Vietnam-born investors and India-born investors, as well as some China-born investors, who happen to already be temporarily in the United States will benefit significantly if USCIS continues to allow use of DFF charts for EB-5 investors. Overall, the absence of positive impact among these recent changes serves as a reminder for the EB-5 industry to continue advocating for more EB-5 visa numbers or similar visa relief. In the interim, regional centers may want to monitor how severely and for how long the new $900,000 minimum investment requirement suppresses worldwide interest and how much the reciprocal benefit to long-backlogged China-born investors might go toward possibly reviving China as a significant source of EB-5 capital.

VOL. 9, ISSUE #1, APRIL 2020