The Impact of Retrogression for Indian EB-5 Petitoners

Hello, I’m Vaughan de Kirby, Investment Immigration Attorney based here in San Francisco. I delayed doing this video for some time because I wanted to have some meaningful information to present to you. That’s even difficult at this point, but I wanted to discuss retrogression.

EB-5 is difficult enough – you’re being asked to make a large investment, which would impact obviously economically but also the future of your family. And retrogression is asking you essentially to get in line without a full understanding of where you’re in that line. So let me try to discuss some of the news and some of the information you’ll receive and let’s see if we can make sense of it. Excuse my notes but I wanted to make certain that I had accurate numbers for you today.

No.1 we know in May 2019, Mr. Oppenheim predicted that retrogression for India would be 8.4 years. This was based on data that he used to make this prediction. That is very important to understand. His data was based on 2.4-2.6 derivative applicants per EB-5 application. Now that is important because that affects the number of people in line, which affects your position in that line. We have had discussions with other professionals in this field and based on our own experience and we find that number to be much lower, perhaps closer to 1.5 to 1.6. The reason we have found that is that many applicants today tend to be in the United States with an approved I-140 for their EB-2 or EB-3. They’ve been here many years and their children tend to be American citizens, so because of that we find that the number of derivative applicants per EB-5 application much lower.

Then we have the July 2019 Visa Bulletin. It said those applications filed after May 2017 would no longer be “current”. That means those applications essentially will be in retrogression. Let me offer a quick definition here. “Current” means your particular priority date is available. Your priority date is the date that USCIS accepted your application, and that will be on your notice of action receipt that you will receive a copy of from your attorney. If your application was filed before May 2017, you’re “current” and you’ll be able to move forward. If it was filed after that, you will be subject to a delay.

With all that information, we have determined that we believe that retrogression is very real under the current law, but we believe retrogression for your application will be closer to 4 or 5 years from your priority date. This is our estimation based on the information we have, which is limited, so you can’t rely on this 100%, but it gives you a different indication than what Mr. Oppenheim said based on the figures that he used.

Now with that 4 or 5 year retrogression, you have to make a very difficult decision. If you’re filing your application today, you need to decide whether it makes sense to you. And there’re a lot of questions that have to be answered. You’ll have your personal questions: will a Green Card have the utility for my family if I have to wait for 4 or 5 years? And you’re going to have to answer that question yourself before you invest. Does it make sense that I will have a Green Card in the future? Will that be a value to my family? The other factor, which I’d like to point out, is we do see a real trend in Congress to increase the investment amount, which means if you invest today, you’ll be investing under the law, as it exists today. We expect the number for the investment to increase by at least 60% to 100%. In other words, people that invest after the change in the law will be paying twice as much as you did for the same immigration benefit.

I hope this information was helpful to you. I recommend you have a discussion with your investment immigration attorney. If you’re my client, certainly feel free to discuss these factors with us. We’ll do the best we can to make sense of a difficult situation. We do have hope out there that Congress will address this question, because when EB-5 was conceived and passed, there was no anticipation of the demand that we have experienced. There is a very good chance that we’ll see Congress address this issue. We can certainly hope, but you must make your decisions based on the law, as it exists today, not as how we hope the law will be in the future.

I hope this was helpful to you. Contact us today or call 415-221-2345. We're here to help!

Vaughan de Kirby
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San Francisco California EB-5 Investment Immigration Attorney

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USCIS has promulgated new EB-5 regulations that will raise the required Regional Center investment amount to the sum of $900,000. These regulations will take effect on November 21, 2019. After this date the opportunity to obtain a United States Green Card for an investment of $500,000 will END. Do not let this opportunity for yourself and your family be lost!

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