Retrogression: What EB-5 Investors Need to Know About Visa Backlogs

The Visa Bulletin for April 2018 confirms that Vietnam will soon experience a visa backlog (retrogression) based on oversubscription. Similarly, Indian investors are likely to experience a visa backlog for the EB-5 category by 2020.

Below is a short list of common questions and issues visa applicants from countries experiencing retrogression should know:  

Can my child or children continue to be eligible for immigration benefits as my dependents based on my approved I-526 petition? 

The Child Status Protection Act (CSPA) was enacted in order to protect children of EB-5 petitioners against long petition processing times.

The U.S. Immigration and Nationality Act defines a “child” as an unmarried individual under the age of 21. Once a child turns 21, the child is no longer eligible for immigration benefits based on the relationship to the parent. This is known as “aging out.

A child’s age essentially freezes on the date the I-526 petition is filed until the date the I-526 petition is approved. This helps protect the child of an EB-5 investor from aging out as long as the I-526 petition was filed before their 21st birthday. Once the I-526 petition is approved, the child’s age unfreezes and he or she must seek to acquire permanent residence within one year of a visa becoming available.

USCIS has interpreted the “sought to acquire” permanent residence element as satisfied if the child:

  • files an application for adjustment of status;
  • files an immigrant visa application;
  • Is the beneficiary of an I-824 petition within one year of the immigration petition approval date (or visa becoming available subsequent to petition approval date, whichever is later);
  • submits a completed DS-260 within one year of the I-526 approval.

If the EB-5 backlog takes longer than the time it takes USCIS to adjudicate the I-526 petition, the CSPA only allows the time an I-526 petition was pending to be subtracted from the child’s biological age at the time an EB-5 visa becomes available.

As long as the EB-5 category remains current (not retrogressed), protection under the CSPA is a relatively simple two-step process.

  1. The parents must file their I-526 petition before their child turns 21.
  2. Within one year after I-526 petition approval, the child must start the adjustment of status or consular interview process.

If these requirements are fulfilled, the child remains eligible for immigration benefits as a dependent, even if he or she is over 21 by the time they arrive in the United States.

Protection under the CSPA becomes more complicated when the EB-5 category becomes backlogged, or “retrogresses,”. In general, as long as the period of retrogression is less than the period of USCIS I-526 adjudication, a child who has turned 21 will still be able to immigrate with his or her parent. However, the CSPA only protects the child to the extent an immigrant visa is actually available for the EB-5 applicant’s priority date. If the visa cut-off date is too far back, the child may still age out.

Where its protection applies, the dependent’s age is “frozen” under that of 21, allowing the child to obtain permanent residence as a derivative beneficiary of the I-526 petition by the parent. The determination of whether or not the protection of CSPA applies is made when the petition priority date becomes current.  At that time, the number of days the petition was pending is deducted from the child’s biological age.  Assuming the resulting age calculated is under 21, the CSPA protections apply and the child has one year to seek to acquire his or her immigrant visa.  

My child may turn 21 after my I-526 petition has been approved, how do I determine if my child can benefit from the protections of CSPA?

If the I-526 petition is approved prior to the announcement of retrogression, the priority date of the petition will still be current. In this case, the child’s “CSPA age” would be under 21, and the child would have one year to seek to acquire his or her permanent resident status. As mentioned above, the Department of State has stated the following can serve to qualify as “seeking to acquire” an immigrant visa:

  • Submission of the I-485 Adjustment of Status Application;
  • Submission of the DS-260;
  • Payment of the immigrant visa fee bill; Submission of a DS-230 to the NVC;
  • Submission of a Form I-824, Application for Following to Join Beneficiary, (If the child is located abroad and the I-526 investor is located in the U.S);
  • Repeated contacts and requests to the Department of State, including continuing inquiries and specific expression of intent to proceed

All of the activities listed serve to qualify under the CSPA requirements as “seeking to acquire” an immigrant visa, preserving the child’s CSPA protection. When the petition is approved and forwarded to the National Visa Center, it is recommended to pay the visa fee bill via cashier’s check, or electronically. It is possible to satisfy the CSPA requirements once the EB-5 applicant’s priority date has become current after the announcement of retrogression.  

What happens if I haven’t received a fee bill from the National Visa Center, but my I-526 Petition was approved before the announcement of retrogression

If you have a dependent child who may potentially age-out, you should contact an attorney once the retrogression announcement is made in order to act to preserve the dependent child’s age for immigration purposes.  

What happens if my I-526 Petition was approved after the retrogression cut-off date is announced?

You will be subject to retrogression and once your I-526 Petition is approved you must check the Department of State visa bulletin each month to determine if your priority date is current.  

What happens if I received a fee bill from the National Visa Center prior to the announcement of the retrogression cut-off date but my dependents have not?

You can make a payment for you and your dependents by sending a cashier’s check via certified mail to the National Visa Center using the case number of the principal application (the EB-5 investor’s application case number).  

What can I expect if I paid my fee bill and filed my DS-260 application after retrogression has been announced ?

You likely will not be scheduled for an immigrant visa interview (I-485 Adjustment of Status) unless your priority date is prior to the cut-off date listed in the Department of State visa bulletin. You will have to check the DOS visa bulletin each month to determine when your priority date is current.  

If I legally reside in the U.S. and have not yet filed my I-485 adjustment of status based on my approved I-526 Petition, can I file my adjustment of status after the retrogression cut-off date?

No, you will have to check the Department of State’s visa bulletin each month to find out if your priority date is current. Once your priority date is current, you are eligible to file an I-485 petition for adjustment of status.  

What is my status if I legally reside in the U.S. and have filed my adjustment of status prior to the retrogression announcement? Can I remain in the U.S? Do I have to renew my advance parole and employment authorization?

Yes, you can remain in the U.S. and renew your advance parole (travel permission) and employment authorization so long as your adjustment of status remains pending. However, USCIS will not adjudicate the adjustment of status application until your priority date is current.  

Where can I check my priority date?

The Department of State announces current priority dates for each immigration category every month on the visa bulletin. There is a “Priority Date Checker” which is an interactive form that will automatically populate the cut-off date applicable for you. The Visa Bulletin includes two charts:

  • Chart A provides information regarding final adjudication cut-off dates,
  • Chart B provides cut-off information for Adjustment of Status filings.

The USCIS website provides updates each month regarding whether it is accepting filings based on Chart B.  

If I am from a country experiencing retrogression but my spouse is from a non-retrogressed country, will my spouse experience retrogression if they are the principle applicant?

No, if the primary applicant is from a country that is not experiencing a visa availability backlog, their petition will be current regardless of whether or not their spouse is from a country experiencing a visa availability backlog. This is known as cross-chargeability.  

If I am eligible for cross-chargeability based on my spouse’s non-retrogressed nationality, are my children also eligible?

Yes.  

Information in this article was obtained from the following sources:

“RC Authorization to 9/30/2018, Processing Times, New RCs“, posted on 23 Mar 2018 to https://blog.lucidtext.com/ by Suzanne Lazicki.

Retrogression FAQs for Vietnamese EB-5 Based Green Card Applicants”, posted on 26 Mar 2018 to https://www.eb5insights.com by Kate Kalmykov

What EB-5 Investors Need to Know About the CSPA”, posted on 21 Aug 2015 to www.EB5investors.com by Stephen Yale-Loehr.

Behring Companies Resources:

FAQ – Knowledge Base

EB-5 Projects

Have Any Questions? Contact Us!

  This article is for informational and educational purposes only and does not constitute an offer or solicitation to sell shares or securities in the Company or any related or associated company. Any such offer or solicitation will be made only by means of the Company’s confidential Offering Memorandum and in accordance with the terms of all applicable securities and other laws. None of the information or analyses presented are intended to form the basis for any investment decision, and no specific recommendations are intended. Accordingly this article does not constitute investment advice or counsel or solicitation for investment in any security. This article does not constitute or form part of, and should not be construed as, any offer for sale or subscription of, or any invitation to offer to buy or subscribe for, any securities, nor should it or any part of it form the basis of, or be relied on in any connection with, any contract or commitment whatsoever. The Company expressly disclaims any and all responsibility for any direct or consequential loss or damage of any kind whatsoever arising directly or indirectly from: (i) reliance on any information contained in this article, (ii) any error, omission or inaccuracy in any such information or (iii) any action resulting therefrom.  

Categories Blog, EB-5 Policy, EB-5 Risk