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Bill S.386 Wants to End Country Caps in EB-5 Visa Allocations


Country caps have been the go-to method at United States Citizenship and Immigration Services (USCIS) to ensure a more even distribution of U.S. immigration visas among applicants from different countries. The problem is that the zero-nuance practice doesn’t consider differences in population sizes across countries, leaving China and Andorra capped at the same number. As a result, lengthy backlogs have built up in high-demand, high-population countries, such as China, and USCIS releases a Visa Bulletin each month to let backlogged applicants know whether they will soon be eligible for a visa. The country-based limit applies to numerous USCIS immigration programs, including the EB-5 Immigrant Investor Program.

In the EB-5 program, visa allocations for the next fiscal year are determined every October 1. While the exact number of visas earmarked for the EB-5 program fluctuates annually, subject to the number of unfilled family-based visas from the previous fiscal year, the number usually falls around 10,000. Country limits are then capped at 7.1%, or roughly 700 visas. Considering that the spouses and dependent children of those who make EB5 investments are also eligible for EB-5 visas, the country caps only allow about 300 to 400 investors from any given country to claim a visa each year.

No More Country Caps under Bill S.386?

Bill S.386, brought to the Senate in July 2019 by Senator Mike Lee (R-UT), ignited a conversation around UCSIS’s country-based visa allocation restrictions. Known as the High-Skilled Immigrants Act of 2019, the bill gained additional support when it was updated and transformed into Bill H.R.1044 – Fairness for High-Skilled Immigrants Act of 2020. On December 2, 2020, with 311 cosponsors, Bill S.386 passed through the U.S. Senate, meaning the elimination of the country caps could really materialize.

A bill that introduces such major changes cannot be enacted simply by passing through the Senate. Senatorial approval is an important step, but now the bill must be approved by both Houses of Representatives before it can become law. The final step is a signature from President Trump, which will take place if the bill is approved by both houses. Given that the bill has broad support from both Democrats and Republicans, as well as Kamala Harris, vice president-elect, as an original cosponsor, it’s entirely possible that it will be enacted, which could completely change the landscape of U.S. immigration.

How Would Bill S.386 Change the EB-5 Program?

The EB-5 program will change significantly if Bill S.386 is enacted, but the changes are generally positive. The eradication of country-based visa allocation restrictions would mostly benefit Chinese and Vietnamese investors, given that, as of December 14, 2020, China and Vietnam are the only backlogged countries in the EB-5 program. In particular, those with EB-5 investments from China and Hong Kong should look at this bill with renewed hope, as the July 2020 inclusion of Hong Kong EB-5 investors in the Chinese backlog represented a blow to both streams of investors.

Under Bill S.386, country caps in visa allocations would be almost non-existent in employment-based immigration streams. A few key conditions remain: a percentage of visas would be set aside and earmarked for foreign nationals from countries other than the two biggest countries for the given immigration program. The remaining visas could then be allocated to any country, with the condition that no one country receive more than 85% of them.

If Bill S.386 passes, it also promises to minimize the impacts of the visa availability approach on Chinese EB-5 investors, who have been the most negatively impacted group. In April 2020, USCIS introduced the visa availability processing approach for I-526 petitions, which prioritizes petitions from applicants whose countries have readily available EB-5 visas. However, if country caps are scrapped, countries such as China will have access to a far larger number of EB-5 visas, pushing down the backlog and reducing the effects of the visa availability approach.