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November 20 2014

Immigration Executive Action

Here are some thoughts on President Obama’s recent and expected executive actions to be announced on Friday!

China Tourist and Business Visas

While in China last week, President Obama announced new reciprocity rules for Chinese citizens coming to the U.S. with tourist (B-2) and temporary/business (B-1) visas. Rather than being valid for up to one year – requiring repeated renewals – they may be valid for up to 10 years.

This does not mean the person can stay in the U.S. for up to 10 consecutive years. Usually such a person is only admitted for six months and a six-month extension is possible (but by no means assured). The passport visa stamp will be valid for multiple trips. Since these rules are reciprocal, U.S. citizens will get longer-term visas to visit China.

The impact on EB-5 green cards is twofold. On the positive side, it will be easier for Chinese prospective investors to visit the U.S. and analyze possible EB-5 investments. On the flip side, some Chinese prospective EB-5 investors may choose to only visit the U.S. instead of immigrating. However, the Chinese EB-5 quota is hitting its maximum per year. Less Chinese EB-5s will mean more for those who do apply – a shorter waiting time for EB-5 green cards will encourage more to apply.

More EB-5 Visas

There is speculation that President Obama’s new rules will allocate EB-5 visa numbers only to the principal applicant and not to their dependents (spouse and minor children). Some predict this would annually free up about 7,000 EB-5 visas now used for dependents, which will then be given to other principal EB-5 immigrants. The spouse and minor children will still be able to immigrate with the principal, but will do so without a visa number.

There are about 10,000 I-526s on file. With an average of about three family members per petition, they will use about 30,000 visa numbers – or three years’ worth. Given the slow processing of I-526s, permitting dependents to immigrate without a visa number would virtually eliminate the anticipated backlog of EB-5 visas for the China quota for some time to come.

We will see if this provision is included in the President’s executive action.

Deferred Departure for the Undocumented

President Obama is expected to announce new rules allowing people who entered the U.S. unlawfully (i.e., jumped the border from Mexico) and those who overstay visas to be given a deferral from deportation and a work permit. There are two major criteria anticipated:

The applicant must have been in the U.S. for five years; and
Must have a spouse or child who is a U.S. citizen or permanent resident.
The details will add more conditions including barring people with serious criminal convictions.

Some say President Obama will and others think that he will not expand the existing DACA program to allow more people who came here as children to get a deferral from deportation and a work permit.

These programs will not have a direct impact on the EB-5 program. However, President Obama’s unilateral actions, cutting the Republican Congress out of the picture, will, according to many congressional representatives, infuriate them and thus it will make other immigration legislation even more difficult. My view, having watched this debate carefully for decades, is that there appears to be little likelihood of an agreement between the Democrats and Republicans. But one never knows. One day an immigration bill looks like it will pass and the next day it is said to be dead, then a few weeks later it passes with provisions no one had previously discussed.