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EB-5 Visas and President Biden’s Immigration Plan

March 9, 2021 / Nadia

Key provisions regarding the EB-5 Program were included in President Biden’s reform bill, the U.S. Citizenship Act of 2021, which was released to the public last month. One of the primary goals of the bill was to reduce green card backlogs for employment-based immigration and specifically highlights changes that would benefit the EB-5 program. The major issues the bill addresses include increasing the total number of available green card visas; improving age-out parameters; implementing a 10-year maximum waiting list for Green Cards and eliminating Per-Country limits.

In an effort to increase the employment-based green cards, including EB-5 green cards for immigrant investors, the total number of employment based world-wide green cards will increase to 170,000 – a 30,000 increase from 140,000. In addition, USCIS will recapture unused green cards dating back to 1992 for all employment-based green cards such as EB-5. Based on available estimates, this could be upwards of 320,000 unused employment-based green cards across all employment-based green cards, EB-5 being one. These changes will go into effect at the start of the federal fiscal year 2022 (October 1, 2021).

The second change on the bill improves the age-out process for children on their parent’s employment-based green card petitions, including EB-5. Under the new rules, children will receive the priority date of their family’s green card petition. The priority date is now retainable for the entire family based on a petition that was approvable when filed – even if it was denied. This priority date applies across all ensuing green card categories within the family and employment-based petitions. In addition, spouses and children of Lawful Permanent Residents that are under 21 become defined as “immediate relatives” and are not subject to waiting lists. Thus, children who are under age 21 during the green card process will qualify under the principal applicant’s green card petition, or, if they age-out, would be eligible for immediate relative green cards with no waiting list. 

The U.S. Citizenship Act includes a 10-year maximum waiting list for green cards and applies to beneficiaries of approved immigrant visa petitions and includes a priority date that exceeds 10 years. This means that those beneficiaries are not subject to numerical limitations on green cards. This rule is effective 60 days after enactment.

The last major change is the elimination of the per-country limits for Employment-based green cards such as EB-5. This is a huge improvement for many countries, including China, who could potentially clear their existing backlog in as little as 3 years. change from the previously defined numbers from each country. This rule will effective October 1, 2021.

Overall, the U.S. Citizenship Act of 2021 is potentially promising for the EB-5 visa program. While the EB-5 cap remains close to 10,000 visas annually, the elimination of per-country limits alongside the recapture of unused employment-based green cards dating back to 1992, can improve existing backlogs and potentially clear backlogs in certain countries over time, such as China. Ultimately, the bill does not specifically renew the EB-5 regional center program or change the EB-5 requirements, however, it does indicate the continuity of the EB-5 program. U.S. Immigration Fund will continue to report on all updates regarding EB-5.

A version of this article was originally published on Donoso and Partners, LLC and can be found here.

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