The EB-5 visa is fast becoming a victim of its own popularity.
The program’s annual limit of 10.000 visas including spouses and dependent children has been met every year since 2013-14.
The program offers fast-track permanent residence to investors making an investment of $500,000 or $1 millio in a commercial enterprise, creating ten permanent jobs for US workers.
With a backlog of 66,000 applications, processing times already exceed ten years for some applicants, and are only expected to increase as investor demand remains strong.
What Are The Consequences of Visa Backlog?
This backlog and excessively-long processing times have led to the following complications and difficulties:
- Sustained pressure on the USCIS to increase the annual limit and make more visas available to investment immigrants.
- Instances of children of applicants ‘aging out’, i.e. crossing the age of 21 years before approval of the EB-5 application, making they do not get a green card despite being eligible when the application was filed.
- Applicants being forced to forfeit their investments since current rules do not allow withdrawal of applications.
- Applicants filing EB-5 applications as early as possible leading to further increase in the backlog.
How To Remove the Backlog and Ease Processing Delays
Since termination of the program is highly unlikely, the USCIS must consider other options to reduce the backlog and cut processing times.
- Suspend new applications or their approval for a short period of time. This will allow the USCIS to focus on pending applications. However, even a temporary suspension is likely to lead to panic and cause investors to abandon the EB-5 visa altogether.
- Allow applicants to withdraw their application and, where feasible, recover their investment. This will allow those not ready to wait for a decade or more to exit the system and reduce the backlog. However, those who have used the regional centre route may find it difficult to recover money that has already been spent. Further, applicants may choose not to withdraw, which will mean the backlog will still remain.
- Allow application withdrawals with an added incentive of a reward of $50,000-$100,000 for those promising not to apply for the EB-5 visa for the next ten years. This may be preferred by those who are unable to recover their investments from regional centres.
- Introduce an annual re-filing requirement for applicants with a recurring fee of $10,000. Those ready to pay this fee year after year can stay in contention for the EB-5 visa. The new fee can be used to fund the reward for applicants choosing to withdraw.
- Allow applicants to jump the line through an auction with rapid admission available to those prepared to pay the highest amount for the privilege. A two-tier setup can be created with 2,000 visas available through auction and the remaining 8,000 visas via the existing system.
Combining all or some of these five options will allow the USA to receive more funds, weed out those unprepared for the decade-long wait for the visa, and get rid of the backlog.
With long-pending reforms expected to be implemented when the regional centre program comes up for renewal at the end of September 2018, introducing measures to reduce the backlog will make things easier for investors, project developers, and the authorities alike.
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