EB5 Investors Magazine English Edition Volume 6, Issue 2 | Page 11

25 years of the EB-5 program, there was, by everyone’s count, more than enough visas to immediately accommodate every EB-5 investor. As a consequence, there was no backlog for the EB-5 visa category. of EB-5 visas is supposed to be used for investors who contribute capital to job - creating U.S. businesses. Statements from members of Congress when the law establishing EB-5 was passed in 1990 bear this out. These members of Congress stated that t h e n ew p r o g r a m wo u l d c r e a te 100,000 new jobs and bring in up to $10 billion for U.S. businesses each year – numbers which correspond to the immigration of 10,000 investors annually. Under the law as written, the spouses and children of investors also qualify for U.S. residency by virtue of their relationship to an EB-5 investor. But, crucially, they obtain their immigration status under a different section of the law – a section that is not subject to any numerical limits. "This counting policy results in the government making far fewer visas available to EB-5 investors than the law provides" That all changed in May 2015, when the U.S. State Department determined for the first time that demand for EB-5 visas exceeded the annual supply. In order to balance supply and demand for EB - 5 visas , the gove rnme nt imposed a visa “cut-off” date. Only investors whose I-526 petition was filed before the cut-off date could immigrate to the U.S. Because of special “per-country” limits impacting countries with a disproportionate share of applicants in any given visa category, the EB-5 visa backlogs currently affect only nationals of China and Vietnam – the two countries with the largest share of EB-5 applicants—but are likely to affect other countries, such as India, in the future. HOW THE GOVERNMENT’S WRONGHEADED “COUNTING POLICY” CREATED THE BACKLOG According to the recent lawsuit, the U.S. government has made a fundamental error in the way it counts EB-5 visas. Under the plain language of the law, the annual allotment Despite this framework, the government treats the spouses and children of investors as if they were investors themselves, and thus counts them against the annual EB-5 visa quota. Under this misguided “counting policy,” for instance, an EB-5 investor who immigrates to the U.S. with her spouse and two children would use four EB-5 visas instead of only one. This counting policy results in the government making far fewer visas available to EB-5 investors than the law provides. In fact, as a result of the government’s mistaken counting policy, only about one-third of EB-5 visas have been made available to investors since the backlog began. EB5INVESTORS.COM 11