Solutions to the Chinese EB-5 Visa Backlog
Predicament
By Bernard P. Wolfsdorf and Joseph M. Barnett
This proposal emerged from President Obama’s Executive
Action Initiative Modernizing & Streamlining Our Legal Immigration System for the 21st Century. Chart B adjustment
filings will allow some Chinese EB-5 investors to apply for
In May 2015, the U.S. Department of State (DOS) an-
travel and employment authorization while waiting for
nounced the establishment of a cutoff date for Chinese
their visa number to come up. This could be a huge ben-
EB-5 visas. A waiting line of 24 months for persons charge-
efit for Chinese nationals waiting in the ever-lengthening
able to the China-Mainland quota was set.
waiting line.
At that time, DOS stated it was “extremely likely that this
category will remain subject to a cutoff date indefinitely.”
As of September 2016, the waiting line has extended to
over 30 months and is likely to get longer.
The U.S. Congress must act urgently to decrease this waiting
line for Chinese EB-5 investors who in FY 2015 contributed
over 85 percent of the capital investment in the EB-5 program.
EB-5 immigrant investors are limited to 7.1 percent of the
employment-based annual limit. This quota of approximately 10,000 visas was set by the Immigration Act of
1990 over 25 years ago and has never been adjusted despite the massive increase in demand for EB-5 visas over
the past 10 years.
Due to the fact that Congress is reluctant to raise the overall immigrant quota, one option would be to re-allocate
visas from the 55,000 randomly allocated to the diversity
program, or from the fourth preference sibling category
that receives over 40,000 visas annually. A convincing argument can be made that Congress intended to admit
10,000 investors, not the 3,000 - 3,200 families currently
admitted annually. Each investor petition consists on average of three visas.
Additionally, from FY 2001-2013, only 29,689 EB-5 visa
numbers were issued, leaving 99,531 unused and wasted
EB-5 visas. While the law currently re-allocates unused visa
numbers, Congress needs to act now to recapture these un-
1: Visa Bulletin for May 2015, available at https://travel.state.gov/content/
visas/en/law-and-policy/bulletin/2015/visa-bulletin-for-may-2015.html (last
accessed August 30, 2016).
2: Id.
3: Visa Bulletin for September 2016, available at https://travel.state.
gov/content/visas/en/law-and-policy/bulletin/2016/visa-bulletin-forseptember-2016.html (last accessed August 30, 2016).
4: 8 U.S.C. § 1153(b)(5)(a).
5: See USCIS Form I-526 Immigrant Petition by Al