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Where’s my visa?

Continued immigrant visa quota backlogs predicted for FY 2019

Longer waiting times for many immigrant visa categories are predicted in fiscal year 2019, according to US State Department Visa Control and Reporting Division Chief Charles Oppenheim, who provided predictions of immigrant visa quota waiting times for fiscal year 2019, which starts on October 1, 2018. Here are highlights from the announcement:

EB1. This is the immigrant visa category for individuals of extraordinary ability, outstanding professors and researchers, and multinational managers and executives. From its creation in 1990 till last summer, this category never experienced waiting periods (with the recent exception of some individuals born in India and mainland China). However, in August and September 2018, the State Department reported a waiting time for all countries of birth. It now predicts the continuation of a waiting period, and not to expect much forward movement before December 2018 or the first quarter of 2019.

EB2. This is the immigrant visa category for professionals with an advanced degree and individuals with exceptional ability. Since its creation in 1990, this category had not experienced waiting periods, with the recent exception of some individuals born in India or mainland China. However, in September 2017, a waiting period was reported for all places of birth. Now, the State Department expects this visa to again become immediately available starting in October 2018 (with the exception of people born in India or mainland China, who will continue to experience lengthy wait times).

EB3. This is the immigrant visa category for professionals and skilled workers. It typically has a wait period of only a few months, except for individuals born in India or mainland China, who have experienced lengthier wait times. While the State Department predicts a wait period for all countries of birth for September 2018, it expects visas in this category to become immediately available again in October 2018 (with the exception of people born in India, mainland China and the Philippines, who will continue to experience lengthy wait times.

EB5. This is the immigrant visa category for immigrant investors. It will remain available to all individuals, regardless of country of birth, but with wait times for people from China and Vietnam. For the latter, visas will be more readily available after October 2018 until March or April 2019, when the wait time will be the same as that of Chinese investors.

The State Department reports immigrant visa waiting times in its monthly Visa Bulletin, which can be found here. The current month and links to past months are available.

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Longer waiting times expected for EB-5 immigrant investors

The US Department of State estimates longer waiting periods for EB-5 immigrant investors from the top six participating countries: China, Vietnam, India, Brazil, Taiwan and South Korea.

Waiting periods have long existed for immigrant investors born in mainland China and recently, EB-5 visa applicants from Viet Nam have been facing them. The State Department’s Visa Bulletin for June 2018 shows that EB-5 immigrant visas are only available to people born in China and Vietnam who applied before August 1, 2014. Now, the State Department predicts the likelihood, in the near future, of waiting periods for people born in the other four above-named countries.

The State Department predicts that, for people born in India, EB-5 will remain currently available until 2019 and that EB-5 is likely to remain available without longer waiting times for people born in Brazil, Taiwan and South Korea until 2020.

The US limits the number of immigrant visas and green cards issued each fiscal year. The limits are based on both visa category and country of birth. Each country has potentially the same supply. Only 10,000 EB-5 immigrant visas are available each fiscal year (October 1, 2017, was day one for FY2018). This small allocation is shared by immigrant investors and the family members who immigrate with them.

In addition to the countries mentioned above, the State Department reports increases in demand from Russia, Japan, Colombia and Venezuela.

While each country is entitled to 7 percent of the annual supply (i.e., 700 visas), any unused visas are allocated in order of immigrant petition receipt date, regardless of place of birth. In the past, that resulted in more China-born immigrants. As the demand from other countries increases, expect fewer unused visas and longer waiting periods.

For example, in FY2017 China received 75 percent (or 7,567) of all EB-5 immigrant visas because of unused visas allocated to other countries. Due to increasing demand from other countries, China will likely get fewer visas this year and in the future. The State Department puts the number at 4,500 in FY2018 and 3,500 in FY2019 (or less than half that of FY2017).

The bottom line: It is more important than ever for immigrant investors to file their petitions as early as possible. The date that the government receives the petition is the priority date.

The Visa Bulletin allocates immigrant visas by priority date. The sooner immigrants make their investment and file the petition, the faster they will get resident status. Petitions are processed slowly by the government. Since the priority date is the date that petitions are first received, immigrant investors are already in line during processing.

There are federal legislative and regulatory proposals pending that would at least partially address this problem. But these are only proposals and it is not clear when they will become law, if ever. One thing is certain: Unless and until Congress increases the annual supply of EB-5 visas, increasingly long waiting periods will create hardships on immigrant investors that will likely result in less job creation for American workers.

EB-5 refers to the employment-based, fifth preference immigrant visa classification. EB-5 is the US immigrant investor program that grants immigrant visas and resident status (or green cards) to individuals who make an at-risk investment that creates, directly or indirectly, full-time equivalent jobs for at least 10 American workers. The required dollar amount of investment is currently US$1 million, although US$500,000 is acceptable in targeted employment areas where the government wants to encourage job creation, generally high-unemployment or rural areas.

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Where’s my green card?