USCIS to Prioritize EB5 Processing Based on Visa Number Availability

The U.S. Citizenship and Immigration Services (USCIS) has announced that, effective March 31, 2020, it will no longer adjudicate immigrant petitions by alien investor (form I-526) on a first-in, first-out basis. Rather, the USCIS will prioritize those EB5 petitions in which the immigrant investor has a priority date that is current, or will soon be current, based on the investor’s country of birth. The USCIS will hold a public engagement event on March 13, 2020, to provide more details on this change.

Background on I-526 Delays

In recent years, processing times for I-526 petitions have steadily increased, largely because the number of I-526 petitions adjudicated by the USCIS each month has decreased significantly. As of the time of this writing, the estimated time range posted by the USCIS for adjudicating I-526 petitions is an incredible 32 to 49 months. Moreover, the USCIS only considers an I-526 petition to be beyond current processing times if it was filed January 23, 2016 or earlier.

Problems with First-in, First-Out Model

On the surface, it seems only fair for the USCIS to process I-526 petitions based on the order in which they are filed. In practice, however, the first-in, first-out model in the EB5 context has some drawbacks. The primary problem is that the vast majority of I-526 petitions with older priority dates were filed by immigrant investors from China; yet, the EB5 China category is severely backlogged. This means that if the USCIS were to continue focusing on the oldest I-526 petitions, the Chinese EB5 investors whose petitions are approved still normally would have to wait years before being able to use the petition to apply for an immigrant visa or adjust status. Further, under the Child Status Protection Act (CSPA), longer processing times for I-526 petitions actually provides protection for dependent children who may be at risk of “aging out” of the program.

Prioritizing I-526 Petitions Based on Visa Number Availability

Effective March 31st, the USCIS will prioritize petitions where immigrant visas numbers are “immediately available, or soon available.” This means that the vast majority of I-526 petitions filed by Chinese applicants will remain pending for the foreseeable future.

EB5 Vietnam has a December 15, 2016, cutoff date in the final action (FA) chart of the February 2020 Visa Bulletin, while EB5 India has a September 1, 2018, cutoff date in the FA chart. However, the EB5 category remains current for both countries in the dates-for-filing (DF) chart. Meanwhile, the EB5 category remains current on both the FA and DF charts for all other countries of chargeability, otherwise referred to as the “rest of the world” (ROW).

This change by the USCIS should result in older I-526 petitions, filed by non-Chinese applicants, being given priority. More recent I-526 petitions filed by ROW also should benefit, presumably after those older I-526 petitions are adjudicated. What is less clear, at this time, is how the USCIS will process I-526 petitions filed more recently by immigrant investors from Vietnam and India. If the dates remain current in the DF chart, it may mean that the USCIS will consider these visa numbers will be “soon available.” Clarification on this issue likely will be provided by the USCIS during the public engagement event scheduled for March 13, 2020.

Change Helps Some, but Central Issue Remains Unaddressed

While this announcement is encouraging news for many EB5 investors, this still does not address the dramatic decrease in the number of I-526 petitions being adjudicated each month. Unless this is resolved, unacceptably long processing times will continue. The longer an I-526 petition remains pending, the greater the chance that the project or company in which an individual has invested will develop some problem. The hope is that the USCIS will also discuss this concern during the public engagement.

Conclusion

More details on the EB5 process can be found in the MurthyDotCom NewsBrief, Overview of the EB5 Immigrant Investor Category (31.May.2017). The Murthy Law Firm has extensive experience in filing I-526 petitions. Readers who would like to pursue an EB5 case or learn more about the program are encouraged to contact a Murthy Law Firm attorney at EB5 [at] murthy.com.

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