As of May 1, 2015, the EB-5 category will have used up its annual limit of visas and the Department of State will establish a cut-off date of May 1, 2013 for Chinese EB-5 investors. This means that only Chinese nationals with approved I-526  petitions and priority dates (filing dates) of May 1, 2013 or before will be able to immediately apply for an immigrant visa.  The remaining Chinese investors will be waiting in line for their priority date (filing date) to become current. The wait for Chinese-born EB-5 petitioners will be approximately two years. This wait could increase depending on the number of petitions filed and adjudicated this year.

Of Note

1. Petitioners born in China may be “chargeable” to another country if they are married to someone from a another country (for example, Hong Kong, Canada, France, Great Britain). In this case, the Chinese petitioner will be able to avoid the quota backlog.
2. If a petitioner with an approved petition has a child who is close to his or her twenty-first birthday,  the petitioner and/or the child must “seek to acquire” permanent resident status within 12 months. If the petition will be subject to the cut-off date, the petitioner must take action prior to May 1, 2015 to “freeze” the child’s age pursuant to the Child Status Protection Act.  The petitioner/child may freeze the child’s age by paying the required fee and filing an I-485 application to adjust status, a DS-260 or DS-230 application for an immigrant visa or a Form I-824 while the priority date is current (before May 1, 2015). DOS has indicated that paying the DOS visa fee alone will lock in the child’s age.
3. Petitioners who have a child nearing 21 and have not yet filed the EB-5 petition should consider gifting the investment funds to the child and having the child file as the principal investor.

In the next few days, we expect to receive additional guidance from the DOS, which we will post as soon as practicable.