INDIAN EB-5 APPLICANTS LIKELY TO FACE RETROGRESSION BY JUNE 2019

On 23 April 2018, Mr. Charlie Oppenheim, Chief of Immigrant Visa Control and Reporting, U.S. Department of State, spoke at an EB-5 industry conference regarding waiting lines for EB-5 investors due to retrogression. He indicated that applicants chargeable to China and Vietnam now face visa backlogs due to retrogression for the foreseeable future, and that visa backlogs for nationals of India, Brazil, South Korea and Taiwan are expected due to the triggering of retrogression by the summer of 2019.

Mr. Oppenheim’s estimates, as he always carefully indicates, are based on the “best available information.” He also bases his estimates on “known facts” and not what could happen in the future. He cannot and does not speculate based on legislative, administrative, or other factors which often impact the waiting lines. In addition, his estimates do not consider other factors such as the big four “D’s” – denial, dropout, death and divorce – which affect EB-5 visa waiting lines.

In past Oppenheim’s predictions have been uncannily accurate. He predicted a China Final Action Date, triggering retrogression “during the summer of 2015” which became a reality in May 2015. For Vietnam he predicted a Final Action Date starting in April 2018, which became a reality in May 2018. Because Mr. Oppenheim has pointed out that his public comments are “likely to guarantee that they will occur, and most likely earlier than expected,” countries with high EB-5 demand should expect a Final Action Date sooner rather than later.

Additionally, EB-5 investors and their legal counsel must now factor in both long adjudication and visa waiting lines. These factors increase the risk of the investment being much longer than anticipated, and the possibility of age-out and family separation become higher.

These are Oppenheim’s expectations for EB-5 visa waiting lines in the near future:

1. China. Oppenheim stated that cases filed in April 2018 could take “about 15 years” before a visa would become available for a mainland China based applicant. As demand for EB-5 visas from outside China grows, every visa issued to non-Chinese applicants is one visa less than can be issued to a Chinese applicant.

2. Vietnam. Oppenheim anticipates that the entire 7% quota of EB-5 visas allocated to Vietnamese nationals will be allocated by the spring of 2019, likely earlier in the year than May. Industry data suggests that Q2 of FY 2018 is the first time in which Vietnamese EB-5 investment outpaced Chinese EB-5 investment, and the industry will continue to see high demand from Vietnam.

3. India. 375 EB-5 visas have been issued to Indian nationals from October 2017 to June 2018. Yet industry data and anecdotal evidence confirms that Indian EB-5 investment has increased significantly over the past year. Moreover, demand from Indian nationals in EB-5 remains high because of extremely long visa backlogs for other employment-based categories like EB-2 and EB-3. Oppenheim anticipates a Final Action Date (triggering retrogression and visa delays) for Indian “no later than June 2019” and likely earlier.

4. South Korea. 423 EB-5 visas have been issued to South Korean nationals from October 2017 to June 2018. As a result, “at some point during the summer of 2019: it may be necessary to establish a Final Action Date and that will likely be the same as the China Final Action Date.

5. Taiwan. 335 EB-5 visas have been issued to Taiwanese nationals from October 2017 to June 2018. Mr. Oppenheim predicts that “possibly” Taiwan may have a Final Action Date “at some point during the summer of 2019.”

6. Brazil is expected to see a Final Action Date at some point during the summer of 2019.

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