July 10, 2019
The House Passes H.R. 1044 to Remove the Per Country Caps
The bill, if enacted, would remove the 7% per country cap on employment-based visas, including EB-5 visas, thereby creating a single line on a first-come-first-served basis for visa availability.
Importantly for EB-5, H.R. 1044 has a 3-year transition provision. The purpose of the transition is to allow low-demand nationals to have a small pool of visas, so that the entire annual quota is not used by visa applicants already in the visa backlog. The transition allows a pool of 15% in year 1 for low-demand countries and 10% for years 2 and 3.
This transition provision is critical in EB-5. Without it, there would be even less demand for EB-5 visas than now. In Q2 of this fiscal year, only 580 petitions were filed as compared with 1,607 filed Q2 last year. The number of investors willing to wait 15-plus years in the backlog would mirror what we now see for Chinese investor demand – very low.
Yet, the Senate version, S. 386 omits EB-5 in its transition provision.
This may be inadvertent, as EB-5 was added, thanks to the House drafters, only in H.R. 1044 and was not in prior iterations of the Fairness for High-Skills Immigrants Act, most recently the Yoder Amendment.
Call to Action: EB-5 stakeholders who believe transitions that already cover other employment-based visa categories in both H.R. 1044 and S. 386 should also cover EB-5 — contact your Representatives, especially Senators.