Proposed Greencard Backlog Relief for EB-5 Investors

In advance of the markup scheduled for today, Monday, September 13, 2021, at 10 am Eastern time, Chairman Jerrold Nadler (D-NY-10thDistrict) introduced sweeping immigration benefits affecting EB-5 investors.¹

First, Mr. Nadler’s legislative proposal would exempt EB-5 investors and their family members from numerical limits and allow adjustment of status (application for lawful permanent residence) if:

  • the EB-5 petition was filed more than 2 years ago
  • the investor pays a supplemental fee of $50,000.

This means that if passed, this law would provide immediate backlog relief to certain EB-5 investors.

Second, the proposal would recapture unused immigrant visa numbers from 1992 through 2021, adding these unused numbers beginning in FY 2022. In my May 2020 article, EB-5 Numbers and Covid-19 Economic Recovery, I reported that there are over 180,000 unused employment-based visa numbers conservatively. EB-5 category’s allocation would total about 13,000 additional visas on top of the usual 10,000 limit.

If the legislative proposal passes, these 13,000 additional visas should operate differently from the approximate 8,600 additional visas added to the EB-5 category this year from the 121,500 unused “Covid-19” spillover visas I wrote about last September with IIUSA’s Lee Li. This windfall has gone largely unused this year because consulates remain closed in FY 2021 and the unused EB-5 numbers will “fall up” to the EB-1 category next year.

Third, the legislation would allow adjustment of status for DREAMERs as well as:

  • essential critical infrastructure workers including healthcare professionals to adjust status (obtain lawful permanent residency) if they meet criteria including continuous physical presence in the U.S. for the last 3 years by paying a $1500 supplemental fee; and
  • individuals eligible for deferred enforced departure as of January 20, 2021 and had continuous physical presence in the U.S. for the last 3 years.

This means that the many H-1B doctors who are also EB-5 investors would qualify for adjustment of status under these procedures notwithstanding the decades-long backlog in the EB-2 category, and also presumably, notwithstanding any lapse of the regional center program

It is gratifying to see recommendations to bring together Covid-19 relief, immigration reform, and EB-5 investor relief in this package. Let us hope the markup today will result in daylight soon for long-awaiting investors and family members.

Stay tuned.

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Please contact Carolyn Lee PLLC for more information and guidance.

¹This legislative proposal is in keeping with the reconciliation directive of the Concurrent Resolution on the FY 2022 budget (S. Con. Res. 14).
²See our webcast video from June 30, 2021 discussing EB-5 regional center sunset and program lapse impacts: https://carolynleepllc.com/videos/.