EB-5 Remains a Viable Option for Immigration Despite Trump Visa Ban LinkedIn

Despite two Presidential Proclamations drastically limiting the availability of visas to the United States, the EB-5 visa remains one of the few categories of immigrant visa presently available for individuals wishing to immigrate to the United States.

A Presidential Proclamation on April 22, 2019 was issued by the White House limiting the availability of immigrant visas to the United States and ordering the Department of State to cease issuing such visas for all immigrant visa categories other than for spouses and children of U.S. Citizens; physicians, nurses, and other health care professionals involved in treating or research related to Covid-19; members of the U.S. Armed Forces and their spouses and children; applicants for certain Special Immigrant Visas; individuals whose entry into the United States would be in the national interest as determined by the Secretary of State; and those seeking an EB-5 visa. The EB-5 visa category is the only broadly available employment- based visa category to receive a blanket exemption. While there may be visas available for people seeking EB-1, EB-2, or EB-3 visas, those individuals would have to show that they qualify for one of the limited exceptions, and the standards for qualifying have not yet been established or made public.

The immigrant visa ban was initially effective from April 23, 2020 through June 23, 2020, but was extended in a June 22, 2020 Proclamation limiting the availability of H-1B, H-2B, L-1 and J employment‑based non-immigrant visas. The current expiration of both the immigrant and non‑immigrant visa bans+ is December 31, 2020. Both bans only affect people who were outside of the United States and did not have a valid visa as of June 24, 2020. Those already in the United States or already in possession of a valid immigrant or non-immigrant visa may still use such visa to enter the United States.

Both the immigrant visa ban and the non-immigrant visa ban were ostensibly targeted at protecting the United States labor market and prioritizing the re-hiring of American workers during the recovery from the economic impacts of the Covid-19 pandemic. As a result, it seems logical that the EB-5 visa, which is an employment creation visa, was specifically left out of the ban. Similarly, E-1 and E-2 Treaty Trader and Treaty Investor visas were left out of the non-immigrant visa ban.

While the EB-5 category is currently backlogged for nationals of China and Vietnam, the EB-5 category for India and the rest of the world will be current as of July 1, 2020. This means that those with an approved EB-5 visa petition may be in the unique position of being able to obtain an immigrant visa abroad, and may possibly benefit from shorter wait times, as the U.S. Consulates abroad will be able to process fewer types of visa applications for the next six months, and may have more availability to work on EB-5 visa applications.

Unfortunately, unless an investor’s I-526 petition is eligible for expedited processing either due to personal circumstances or because investor invested in a project that has been granted an expedite, the only people likely to benefit from this situation are people who already have approved I-526 petitions, as USCIS processing is likely to last longer than the visa ban for someone who files a petition today. The Proclamation is subject to extension by the President, if he is still in office in 2021. Nevertheless, should the Proclamation be extended, it is likely that EB-5 will continue to be exempted because it is a job-creating visa category.

https://www.jdsupra.com/legalnews/eb-5-remains-a-viable-option-for-37840/

Mentions

• Daniel B. Lundy

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• New York