Substantial EB-5 visa numbers this fiscal year may be ‘lost forever’

  • Posted on May 7, 2020 | Updated on May 7, 2020 | 5 min read

Immigration lawyer H. Ronald Klasko thinks several factors this fiscal year could mean not all 10,000 EB-5 visas may be used: long processing times and the closure of U.S. consulates around the world due to the pandemic are among the key reasons. Klasko sees filing multiple-plaintiff mandamus complaints as an answer.

Immigration lawyer Klasko points out the unfortunate irony: even though EB-5 demand is far greater than the supply of just 10,000 visas per year, this fiscal year may see large numbers of EB-5 visas not being issued and “lost forever.”

6 reasons why EB-5 numbers may be lost

  1. Longer I-526 processing times
  2. Investors with approved I-526 applications have to wait longer to have their I-485 application processed to adjust their status.
  3. Many investors with approved I-526 applications overseas who have been interviewed are dealing with “indefinite administrative processing with no reasons given”
  4. The VISA Bulletin Chart A (Final Action Dates) for China have only advanced six weeks in the past two months
  5. USCIS is not using Chart B (Dates For Filing) that would mean more adjustment of status petitions could be processed this fiscal year
  6. The closure of U.S. consulates globally means investors with approved I-526 petitions have to wait longer for interviews. Klasko does point out that he feels it is likely the consulates will open in time to accommodate the interviews given that the Executive Order does not allow for the interviews of other immigrants

Ways to ensure that EB-5 visas don’t go unused 

Klasko offers two possible solutions for this problem. The first, which he says is very unlikely, would be for USCIS to, of their own accord, expedite EB-5 processing. 

The second solution is litigation — one that Klasko’s firm will be “pursuing imminently” as the fiscal year closes at the end of September. He states that his firm will file three or four multiple-plaintiff mandamus complaints — an attempt to have a court order USCIS to process unreasonably delayed petitions. The complaints ask for adjudication before the fiscal year end, after which unused visas will be lost. They will also refer to the Executive Order which “indicates a clear intention to give priority to EB-5.” Lastly, he says the complaints will include as many investors as possible as relief will only apply to named plaintiffs.

Read the Klasko blog “How to Prevent EB-5 Numbers from Being Lost Forever”