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EB-5 Visas and Biden’s Immigration Plan

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Summary

The U.S. Citizenship Act of 2021 is President Biden’s immigration reform bill released to the public on February 18, 2021.  The bill was released as a Senate bill sponsored by Senator Menendez (D-NJ) and co-sponsored by several other democratic senators.

Its main goals are to: (1) legalize the situation of undocumented immigrants; (2) reduce green card backlogs for employment-based immigrants, and (3) reduce future illegal immigration.

Key Provisions Regarding the EB-5 Program

1)    Increase in World-Wide Employment-Based Visa Numbers

  • Employment-based world-wide green cards increased to 170,000 visas (up from the current 140,000) (revision of INA Section 201(d)).
  • Recapture of unused green cards dating back to 1992, including all Employment-based green cards such as EB-5. Best estimates of un-used Employment-based green cards available from recapture are in the range of 320,000 green cards across all categories.
  • Effective date: October 1, 2021 (start of federal fiscal year 2022).

2)         Improvements to Avoid Age-Outs

Age-out children over 21 receive the priority date of their parent’s family-based or employment-based green card petition. Priority date is retained for whole family based on a petition that was approvable when filed (even if the petition was eventually denied).  Priority date applies across all subsequent green card categories (family and employment-based).

Spouses and children under 21 of Lawful Permanent Residents become “immediate relatives” that are not subject to waiting lists.

3)         10-Year Maximum Waiting List for Green Cards

  • Persons who are beneficiaries of an approved immigrant visa petition that has a priority date that is more than 10 years old are not subject to numerical limitations on green cards (revising INA Section 201(b)(1)). This rule becomes effective 60 days after enactment.
  • Exclusion of family derivatives from numerical limitations. Spouses and children of principal green card applicant are not subject to numerical limitations (exclusion of dependents from caps on green cards) (revision of INA Section 201(b)(1)).

4)   Elimination of Per-Country Limits

  • Elimination of per-country limits for Employment-based green cards. This rule becomes effective on October 1, 2021 (federal fiscal year 2022) (see Page 222, line 9).
  • Annual EB-5 visa cap is 5.85 % of total world-wide visas of 170,000 (excluding family derivatives, and with recapture of unused Employment-based visa numbers – see above). 170,000 x 0.0585 = 9,945 EB-5 green cards for investors.

5)         Observations

  • EB-5 cap remains near 10,000 visas annually.
  • EB-5 excludes derivatives family.
  • EB-5 per-country limits will clear China backlog in approximately 3 years.
  • Recapture of unused Employment-based green cards dating back to 1992 may reduce backlogs even more.
  • The bill does not expressly renew the EB-5 Regional Center program or amend EB-5 requirements. It does, however, contemplate the continuity of the EB-5 program with sufficient visa numbers as to consider it reasonable to infer that a renewal of the EB-5 Regional Center program is foreseen.

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