On April 13, 2015, in its May Visa Bulletin, the US State Department reported that the EB-5 immigrant visa category for China will retrogress two years beginning on May 1, 2015, and will have a cut-off date of May 1, 2013 (US Department of State: Visa Bulletin for May 2015). This means that starting May 1, 2015, only those EB-5 investors who are chargeable to mainland China with a priority date of May 1, 2013 or earlier may apply for and receive green card status in the EB-5 immigrant visa category. The priority date is the date that the United States Citizenship and Immigration Services (USCIS) received the I-526 petition approval notice and can be found in the priority date box on the receipt notice.

In the bulletin, the State Department indicated that it believes this cut-off date will remain in place until September 30, 2015 (the end of the fiscal year), but that the date could retrogress even further if demand continues to be high. Applicants should check the State Department website each month to ensure that their priority date is current.

Chinese nationals are the most frequent participants in the EB-5 program, comprising 90% of the immigrant investor category in 2014. Nationals from other countries applying for an EB-5 visa are not subject to the retrogression and may still file for and receive green card status in the EB-5 category once they receive their I-526 petition approval. This retrogression only affects individuals chargeable to mainland China. Chargeability is typically determined by place of birth.

This retrogression has been expected since last year, when the EB-5 visas reached their quota and were frozen for the first time in the program's history (see Legal Update, EB-5 Visa Freeze Troubling for Hotel Industry).

Real estate developers have increasingly used the EB-5 program to fund development projects, particularly in the hotel industry. This retrogression impacts both real estate developers and Chinese investors. For developers, this delay now likely increases the typical length of their EB-5 loan from the current average of five years to seven years. Chinese investors are more greatly affected, however, as the new retrogression is likely to increase the amount of time it takes before they receive their green cards.