Chinese Nationals Face EB-5 Cut-Off Date

The long anticipated announcement by the U.S. Department of State to establish a cut-off date for Chinese nationals participating in the EB-5 program is finally here.  Effective as of May 1, 2105, the EB-5 China immigrant category will face a cut-off date of May 1, 2013.  Only Chinese nationals with a priority date of May 1, 2013 or earlier will be eligible to receive immigrant visas until such time as the cut-off date is revised.  The USCIS receipt date of Forms I-526 filed by the EB-5 investor establishes the priority date for all EB-5 applicants.  Therefore, Chinese nationals should check their priority date to determine how the cut-off date will impact their immigrant visa processing.  As a result of this action by the U.S. Department of State, immigrant visa interviews at the U.S. Consulate in Guangzhou are being cancelled for those Chinese nationals with priority dates that do not qualify under the new cut-off date.

Because the cut-off date for Chinese nationals is subject to change on a monthly basis, it is advisable that interested applicants closely monitor the U.S. Department of State Visa Bulletin which is available here.  The monthly Visa Bulletin will disclose if the cut-off date has changed and what priority dates are eligible for an immigrant visa that month.  The cut-off date only applies to an EB-5 applicant’s country of birth referred to as the country of “chargeability” and not the county of citizenship.  Accordingly, only EB-5 applicants born in mainland China are subject to the cut-off date.  EB-5 applicants born in Hong Kong, Macau or Taiwan are not subject to the cut-off date.  Under certain rules known as “cross-chargeability” Chinese nationals that are otherwise subject to the cut-off date but have a spouse with a country of birth other than mainland China, can qualify under the spouse’s country of birth and avoid the China EB-5 cut-off date.

The establishment of an EB-5 cut-off date for Chinese nationals will have a significant impact on the processing of Forms I-824.  The U.S. Department of State and USCIS have announced that they will provide guidance on this subject as soon as possible.

Finally, we previously reported on President Obama’s proposed immigration reforms which if implemented would alleviate this issue.  The President has proposed recapturing unused immigrant visa numbers from prior years and allowing them to carry over year after year thereby increasing the number of available immigrant visas each year.  Because the EB-5 category has never reached the maximum of 10,000 immigrant visas allocated per year, recapturing a portion of the unused immigrant visas would alleviate the need for a cut-off date.  The President also proposed eliminating the current practice of counting all derivative family members against the 10,000 immigrant visas. Eliminating this requirement and only counting the principal investor against the EB-5 immigrant visa cap would the need for a cut-off date would no longer be necessary.

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