A photo of Worldway President Dr. Winner Xing with Mr. Klasko
Mr. H. Ronald Klasko, President of the American EB-5 Immigration Lawyers Association, is an old friend of Worldway. He has visited Worldway many times, bringing the latest news from the U.S. Citizenship and Immigration Services (USCIS) with each visit. Worldway also frequently communicates with Mr. Klasko via transoceanic conference calls to stay informed about the latest information and development trends regarding U.S. EB-5 immigration.
Ronald Klasko recently discussed the possibility of Chinese demand for EB-5 visas exceeding the quota. If the limit is reached, it means that Chinese EB-5 investors will have to face the issue of a long visa backlog, which will severely restrict their pace of entering the United States with conditional immigrant status. Ronald Klasko proposed creative solutions to address the visa backlog issue from a personal perspective.
How can the visa backlog issue be avoided? The most obvious answer is to change the quota. Congress established the quota system. Likewise, if Congress is willing to increase or eliminate the quota, this problem will be solved. Currently, Congress has set a limit of 10,000 for EB-5 visas, and these 10,000 include all EB-5 visas issued by the United States globally. The EB-5 visa is not only limited by a country-level quota, but the statistical count of issued visas is also not very lenient. The 10,000 visas include not only those issued to the investors themselves but also all those issued to their spouses and children. Congress could indirectly increase the Chinese EB-5 visa quota by eliminating the country-level quota or by not including visas issued to investors' spouses and children in the count. Unfortunately, any hope of solving the current visa quota problem through legislation does not seem very realistic at present. If you follow the debates in Congress regarding immigration law, it is not difficult to see that the hope for both houses of Congress to recognize and pass a comprehensive immigration reform bill in the short term is very slim.
If one day Congress officially announces that the comprehensive immigration reform bill will not pass, it may mean that certain piecemeal immigration policies, including the EB-5 bill, will undergo some changes. Once this assumption holds, there is no doubt that the EB-5 visa quota issue will rise to the forefront. However, many key members of Congress do not wish to increase the EB-5 visa quota unless they want to reduce the number of immigrants in other categories at the same time. But every other category of immigration has its own supporters, and they will all support their preferred immigration methods just as those who support the EB-5 bill do. They will also do everything possible to ensure that the existing quota remains stable or increases, rather than decreases.
In short, solving the visa quota problem through legislation does not look optimistic for a long time to come.
Are there any other options? Administrative agencies such as USCIS and the Department of State do not have the authority to increase the 10,000 EB-5 visa quota. However, what if there were a way for the relevant administrative agencies to adhere to the 10,000 visa quota limit while increasing the number of investors? This method does indeed exist.
The answer lies in the Immigration and Nationality Act. Ronald Klasko believes that if you carefully study the relevant statutes, you will find that the 10,000 visa quota set by Congress actually refers to 10,000 investors. Logically speaking, how many investors Congress allows to immigrate to the United States each year depends on how many children each investor has on average. But logic is not decisive; the statutory provisions are.
Happily, the statutory provisions are consistent with logic.
Section 203(b)(5) sets a global quota for qualified immigrants who wish to make commercial investments in the United States. In Ronald Klasko's personal view, the investors' spouses and children are not the intended investors in the U.S., so the visas issued to them should not be counted in the 10,000 quota. The legal provisions related to investors' spouses and children can be found in Section 203(d), and this regulation is often cited as the theoretical basis for counting the vast majority of the 10,000 quota as visas issued to investors' spouses and children. However, the regulation does not state it that way. The regulation states: The spouse and children of an investor enjoy the same status as the investor, and the same "order of consideration" as the principal investor. The "status" here refers to permanent resident status, and "order of consideration" refers to the fact that the spouse and children can immigrate to the United States at the same time as the principal investor. However, this regulation neither specifies nor implies that visas issued to spouses and children should be counted separately within the 10,000 quota.
In fact, the current system contradicts the statutory requirements of Section 203(d). Spouses and children do not necessarily enjoy the same "order of consideration" as the principal investor. For example, if the principal investor obtains permanent resident status when the quota allows, and subsequently, if their spouse and children want to immigrate with them, but it happens that the quota is reduced or insufficient, then the spouse and children cannot enjoy the same order of consideration as the principal investor and therefore cannot obtain immigration eligibility. This not only conflicts with the legal text but also contradicts the law.
Under what circumstances can this creative argument prevail?
There are two situations. First, the administrative agencies currently seeking to resolve immigration issues can implement this reform unilaterally without legislation to increase the quota; undoubtedly, this will require immense political courage. Currently, relevant parties are trying to persuade the government to take such action. Second, in addition to administrative efforts, another feasible method is litigation. Although litigation is difficult and legal provisions may be subject to different interpretations, a purely legal issue like the EB-5 quota is perfectly suitable for judicial review.
Ronald Klasko has always believed that complex problems require creative solutions. And for the EB-5 visa quota issue, it is clear that this is a complex problem that needs to be solved with a creative approach.
