EB-5 Visa: Retrogression, Priority Dates and I-526 Petition Approval Notices

EB-5 Visa: Retrogression, Priority Dates and I-526 Petition Approval Notices

With retrogression looming, it is a good time for a quick primer on priority dates and the information contained on an I-526 petition approval. U.S. federal law caps the number of EB-5 visas that are available each fiscal year at 10,000. When an EB-5 investor files an I-526 Petition, the day his or her I-526 petition is received at USCIS is the EB-5 investor’s “priority date.” Retrogression is the term which denotes the time period when the visa cap is reached and the U.S. Department of State (DOS) must establish a cut off-date for visa applicants based on a priority date in the past. An analogy might be to consider the EB-5 visa category as a queue and an EB-5 Investor’s priority date as his or her place in line in the queue.

EB-5 visa

In the example above, the EB-5 investor’s priority date is August 20, 2014. This is the day USCIS received the investor’s I-526 petition. However, the receipt notice itself is dated August 21, 2014. These two dates would also have been found on the investor’s I-526 petition receipt notice.

The DOS uses priority dates to determine when an applicant can apply for an EB-5 visa at a U.S. consulate or embassy abroad, or file for adjustment of status in the United States. Each month, the DOS will issues its Visa Bulletin to let individuals know whether the DOS can start processing their visas applications based on their priority dates. As of January 2015, the category is marked with a “C” meaning the category is “current” for all individuals and eligible EB-5 petitioners with approved I-526 petitions. Such individuals may apply for permanent residence. Hypothetically, if the Visa Bulletin listed a date of August 31, 2014 in the EB-5 category due to retrogression of the visa numbers, any EB-5 visa applicant possessing (A) a priority date (i.e. an I-526 properly filed) on or before August 31, 2014 and (B) an approval of that petition could apply for an EB-5 visa or file for adjustment of status. When one possesses a priority date earlier than the date stated on the Visa Bulletin, that visa applicant’s priority date is deemed to be “current.” In the example above, the investor would receive his or her I-526 petition approval notice and immediately check the Visa Bulletin. If the Visa Bulletin listed a date on or after August 20, 2014, the investor could apply for an EB-5 visa or file an adjustment of status.

Priority dates are also important for the application of the Child Status Protection Act (CSPA) for children who are close to reaching the age of 21 or who have reached the age of 21 on or after the date the I-526 petition is approved. If the visa numbers retrogress for EB-5, the CSPA allows the time an I-526 petition was pending at USCIS to be subtracted from a child’s biological age for determining if the child can still be considered a “dependent” of their EB-5 petitioning parent. In this way, the CSPA protects the child from being penalized for the time the I-526 petition was pending with USCIS. However, the CSPA does not protect a child against visa retrogression.

In the scenario above, if the investor had a child who turned 21 on November 20, 2014, that child would benefit from the CSPA. Since the investor is over 21 at the time of I-526 petition approval, pursuant to CSPA, USCIS and DOS would subtract the I-526 petition processing time (3 months and 21 days) from the child’s age at the time of approval (21 years and 21 days). Thus, 21 years and 21 days minus 3 months and 21 days equals 20 years and 10 months. Accordingly, in this scenario the investor’s child age for immigration purposes is deemed to be 20 years and 10 months. Under CSPA, any child who possesses an “immigration age” of less than 21 years must “seek to acquire” a visa within one year after a visa becomes available. He or she can then start the process for obtaining an EB-5 visa, but should do so within a year of I-526 petition approval to preserve “dependent” status under the CSPA.

However, if the priority date of the parent is not current due to retrogression upon approval of the I-526 petition due to retrogression, the child’s age unfreezes. Thus, in the scenario above, if an EB-5 visa is not available for 6 months (i.e. the Priority Date was not current on December 11, 2014, and does not become current until June 2015), the child would be “aged out” at the time an EB-5 visa was available (i.e. the priority date is current (June 2015)) because the child’s age is over 21 after subtracting the time the I-526 petition was pending (3 months and 21 days) from the child’s actual age when the visa becomes available. The child would be unable to derive benefits of the parent’s I-approved I-526 petition.

Source : National Law Review

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