How EB-5 Visa Wait Times could be Impacted by the Fairness for High-Skilled Immigrants Act of 2020 (H.R. 1044)

On December 2, 2020, the U.S. Senate passed by unanimous consent the, Fairness for High-Skilled Immigrants Act of 2020, an amended version of H.R.1044 that was passed by the U.S. House of Representatives in 2019. If this legislation is signed into law, it would eliminate the 7% per-country cap for all employment-based immigrant visa categories, including the EB-5 visa category.

However, the version of the bill that was passed in the Senate on December 2, 2020 is substantially different from the version that was passed in the House on July 10, 2019. While policymakers are in closed-door negotiations over the final version of the bill, based on the latest updates IIUSA has received from Capitol Hill, it’s unlikely that this legislation will be attached to the “ominibus” spending package for FY 2021. However, it is still advantageous to assess the bill’s potential impact in the EB-5 context.

H.R. 1044 is a complicated piece of legislation and would have significant impacts on the U.S. immigration system, including the future wait time for EB-5 applicants. With many factors affecting the immigrant visa process and the irregularities imposed by COVID-19, it’s virtually impossible to predict exactly how EB-5 visa wait times would be impacted by H.R. 1044.

However, using the latest data from the Department of State (DOS) and the U.S. Citizenship and Immigration Services (USCIS) and with a list of reasonable assumptions, IIUSA published this comprehensive policy analysis to shed some light on the probable impacts of the legislation that was passed in the Senate on December 2, 2020. It’s critical to inform policymakers and industry stakeholders of the impacts and the significance of this legislation, ensuring the EB-5 program’s ability to continue generating capital investment and creating or saving jobs for American communities when the country needs them the most.

Impacts on EB-5 Visa Wait Times

If the Senate version of the bill is signed into law in its current form (i.e., as passed on December 2, 2020), our analysis found:

  • The estimated wait time for a new EB-5 investor would be approximately 8.3 years, regardless of the investor’s country of origin.
    • This estimated 8.3-year wait is inclusive of the wait for an I-526 approval from USCIS.
    • This estimate could change if more than 10,000 visa numbers are allotted to and used by EB-5 applicants in any particular year or in multiple years.
  • On China:
    • The estimated EB-5 visa wait time would be reduced by approximately 3 years from probably 11.4 years to 8.3 years.
    • The visa wait time for Chinese applicants with a petition on file would no longer be impacted by any new demand for EB-5 visas from other countries.
  • On Vietnam:
    • The estimated visa wait time would remain approximately 8 years regardless of whether the per-country cap is in place or not.
  • On India:
    • The estimated wait time could be longer than would be expected with the per-country cap in place. However, the extent of the delay would largely depending on USCIS’ processing of the currently pending I-526 cases filed by investors from India.
  • On all other countries:
    • The estimated EB-5 visa wait time would be 8.3 years, approximately 5.5 years longer than would be expected under law existing (i.e., before the potential enactment of legislation to remove per-country caps in employment-based immigration).

See Figure 1 for a summary of probable impacts on EB-5 visa wait times for applicants from different countries:

Moving Parts Affecting EB-5 Visa Wait Time

In addition to providing estimates on the visa wait times, this report also discussed a number of factors that could alter the actual EB-5 visa wait times for new investors including one or more of the following (see the report for the more details):

  • Annual EB-5 visa availability;
  • Average approval rate of I-526 petitions;
  • Number of family derivatives qualified or counted for an EB-5 visa;
  • Withdrawal rate of EB-5 applicants; and
  • New demand for EB-5 visas.  

EB-5 Visa Backlog Projection (Long-Term)

This legislation would not reduce the existing visa backlog that consists of approximately 83,000 applicants. Moreover, the EB-5 visa backlog could continue to grow and the wait time would be longer if demand for EB-5 visas continues to exceed the EB-5 program’s current equilibrium (i.e., approximately 3,900 new investors filing an I-526 petition on an annual basis).

Economic Consequences

Our analysis found that the Senate version of the bill would cause significant economic impact on U.S. communities in the EB-5 context. If this legislation is to go into effect, it would eliminate the availability of EB-5 visas to any new applicants until the current backlog is cleared out, which would take approximately 6 to 7 years after the enactment of the bill.

As visa availability is a critical factor in the EB-5 program’s ability to generate capital investment and create or save jobs for American communities, the elimination of visa availability to new investors would deeply hamper the EB-5 program’s economic development capabilities for American workers when the country needs them the most.

Transition Rules

Although transition rules in the Senate bill do not apply to EB-5, it is still critical to evaluate the potential impacts should EB-5 be included in the same proposed transition rules on future amended legislation. Based on our analysis, if the transition rules were applied to EB-5 applicants:

 

  • On China
    • The estimated visa wait time for China would not be altered significantly and would remain at approximately 8 to 9 years.
  • On Other Countries
    • Applicants from other countries, including Vietnam and India, would be protected by the transition rules and able to continue receiving certain but limited numbers of EB-5 visas per year.
    • However, how the transition rules could alter the visa wait times for these applicants is highly unpredictable and largely depends on the I-526 processing times at USCIS.
    • Depending on how fast USCIS adjudicates an I-526 case:
      • In the best-case scenario, a new EB-5 visa applicant from a country that is not one of the two countries with the highest demand (e.g., Brazil), could still receive an EB-5 visa number immediately after his/her I-526 petition is approved under the transition rules.
      • In the worst-case scenario, the estimated wait time for any new investors not from China could still be approximately 6 to 7 years even with the transition rules in place.

Learn More from a Recent Episode of the EB5 Investor Voice Podcast

 

Last week, IIUSA Director of Policy Research and Data Analytics, Lee Li joined the EB5 Investor Voice Podcast to discuss the impacts of H.R. 1044 on EB-5 visa wait times.

Given the complexity and the significance of this legislation, these discussions are crucial for policymakers to understand the consequence of the bill and make policy decisions that would not only modernize the immigration system but more importantly truly benefit the American communities. 

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