EB-5 Updates

EB-5 roller coaster continues (RC status after December 29, processing, FY2023 visas, EAGLE Act and country caps)

December 6, 2022 1 Comment

While my plate is full of everyday work plus hard articles that could be written, I’d like to briefly flag a few matters of critical importance for the EB-5 community. There are questions about the status of previously-approved regional centers and their investors, ongoing processing issues, and the prospect of new legislation to change everyone’s visa wait times. Before launching into details, a reminder that industry associations like IIUSA (for regional centers) and AIIA (for investors) are working on these issues, and you can join an association to help magnify your voice and interests in these volatile times.

Regional Center Status after December 29

USCIS finally published minute s from the October 14, 2022 meeting between USCIS and the plaintiffs in the Behring litigation. These minutes reveal that at least as of October, USCIS had yet to make up its mind about a few very consequential questions, and invited stakeholder feedback.

USCIS has not yet decided whether it will take the position that RIA requirements, such as fund administrators and audits, apply to pre-RIA projects. USCIS will consider stakeholders’ written position paper on this issue in accordance with existing channels of communication and in compliance with Section 107 of the RIA.
USCIS will accept input on the issue of whether the I-956G filing requirement should be deferred to December 2023 based on input from Stakeholders that much of the information is duplicative with the I-956 being filed in December 2022. Input will be provided in accordance with existing channels of communication and in compliance with Section 107 of the RIA.
USCIS has not determined what will happen to regional centers that choose not to file Form I-956. Specifically, it has not decided whether such regional centers will be terminated, whether they will have to file I-956H, whether they will have to file annual statements, or whether any of the RIA requirements apply to them. They will accept our written position paper on these issues in accordance with existing channels of communication and in compliance with Section 107 of the RIA.

That last bullet point is especially urgent and significant. The Form I-956 content is focused on compliance for capital raising activities, and as such not technically relevant for previously-approved regional centers that do not plan to raise new EB-5 capital going forward. But what if USCIS decides to terminate all regional centers who do not choose to raise new EB-5 funds? If USCIS starts terminating regional centers for not filing I-956 by December 29, 2022, instead of offering another status for RCs still responsibly shepherding previous EB-5 investment, then past investors in those RCs will find their immigration status in jeopardy. Under the new law, regional center termination means that good faith investors in the terminated regional center lose eligibility in 180 days unless (1) the investor’s NCE manages to switch sponsors and secure affiliation from a different still-authorized regional center (practically a fraught and expensive undertaking) or (2) the investor makes a new investment (yikes). Under the new law, regional center termination has consequences for investors at all stages in the process, including during conditional permanent residence. The grandfathering language in the new law protects past applicants from denials based on the expiration of regional center program authorization, but not explicitly from denials based on changes resulting from new legislation. So USCIS faces judgement calls when it comes to how to treat previously-approved regional centers and their investors, and should hear our input for those judgement calls. (To review the new law provisions, see INA 203(b)(5) sections (M) and (S). And here’s the Settlement Agreement.)

The plaintiffs in the Behring litigation are coordinating response to USCIS. Their feedback will naturally reflect their interests and perspective as regional centers who do choose to file I-956 to raise new capital going forward. If you’re with an RC that does not plan to raise new capital after RIA, and concerned about protecting past investors, you should also let USCIS hear your voice and reasoning, as soon as possible. The stakes are very high. See the base of this page for links to accepted channels of communication for submitting feedback. (UPDATE: Klasko Law, counsel for several of the Behring litigation plaintiffs, has just published a detailed article on this topic.)

RIA Compliance Resources

Note that the October 2022 Regional Center Business Journal is packed with substantive and helpful articles for regional centers working with compliance under the new law, including:

“Checklist of Contents for Regional Center Compliance Policies and Procedures Manual Under the EB-5 Reform & Integrity Act” by the EB-5 Securities Roundtable
“New Job Creation and TEA Rules in the EB-5 Reform and Integrity Act of 2022 Revised and Explained” by Scott Barnhart and Adam Greene
“Understanding Audits & Fund Administration Under the Reform & Integrity Act” by Coleen Danaher, Bidhya Dhungel, and Mike Xenick (also a blog post)
“Regional Center Transactions Post-RIA: Considerations for Purchase, Sale, and/or Rentals” by Rohit Kapuria and Ronald Fieldstone
“EB-5 Concurrent Filing” by Simone Williams and Charles Kaufman
”Who are ‘Promoters’ and What Requirements Apply to Them Under the EB-5 Reform and Integrity Act” by Catherine DeBono Holmes (also a blog post)
“Reserved Visa Rules, Possible Future Visa Allocation, and Recommendations” by Barnett, Oppenheim, and Lee (also a blog post)

I’m thankful for the hard work by industry. I’ve noted no significant new content on the USCIS website EB-5 pages. The EB-5 Policy Manual EB-5 Chapters 3, 4, 5, and 6 have not been updated yet based on the new law.

Processing and Timing Questions

I continue to update my Processing Data page with intel as I receive it on I-526 and I-829 processing. Pay attention to volume trends, and to the distribution of filing dates being adjudicated. Since May 2022, the Investor Program Office has stabilized into a new stride of 100-140 decisions per month each for I-526 and I-829, with decisions spanning a wide range of filing dates. At that volume, it will take IPO about eight years to process the already-pending inventory of over 12,000 I-526 and over 11,000 I-829. My best guess for your personal adjudication wait is “probably less than eight additional years,” with the “how much less” depending on your filing date, whether you happen to benefit or suffer from USCIS’s major deviations from FIFO processing, how soon the new adjudicators hired this year/next year can get up to speed, and whether/when IPO gets approval to significantly increase its authorized staffing level. No one thinks that eight years is an acceptable processing target. But regardless of goals, actual performance is constrained by staffing (which doesn’t change quickly) and by decisions about processing order (which can only improve appearances by manipulating the median, and provide faster times for some at the cost of slower times for others). IPO’s demonstrated incapacity to handle the EB-5 inventory is my top EB-5 concern.

The process for I-526 approvals getting transferred to NVC continues to be problematic. See question 16 (p. 7) of this June 2022 AILA/DOS Q&A for a process to follow if NVC has not received your approval notice and sent you a welcome letter after 60 days.

Visa operations generally are improving, though not back to normal. See the DOS October 21 Update on Worldwide Visa Operations.

FY2023 Visa Availability

Department of State has published Annual Numerical Limits for Fiscal Year 2023. Despite what the EB-5 Reform and Integrity Act said, the published FY2023 annual limit for EB-5 visas is exactly and only 7.1% of the EB limit. The report mentions no carryover of the 6,396 reserve EB-5 visas that went unused in FY2022. I had wondered what DOS would do with a new EB-5 carryover law that contradicted another part of the INA. It appears that the conflict has not been resolved in EB-5’s favor. It’s a pity, because EB-5 will lose over 10,000 visas by FY2024 if the newly-reserved EB-5 visas both can’t be issued (because strictly restricted to post-RIA applicants who can’t reach the visa stage yet) and also can’t be carried over to the next year (as RIA had contemplated). I’ve encouraged advocates to look into this.

EAGLE Act and Country Caps

Under current law, there’s a country cap of 7% applied to each category of Employment-Based visas. The cap limits any one country to 7% of visas within that category until other countries’ demand under the 7% limit has been satisfied. (I used to assume that the 7% applied to categories as a whole, not subcategories, but Charles Oppenheim recently set me straight. In EB-5, the 7% cap applies independently within each reserve and unreserve visa class, not just to the EB-5 limit as a whole.)

Without country caps, visas within each EB category would simply get issued by priority date, oldest to youngest.

Who benefits from the country cap law, and who would benefit from changing the law to eliminate country caps and let EB visa applicants flow in FIFO order? Country caps protect visa availability for applicants from low-demand countries, while constraining applicants from high-demand countries into enormous backlogs. Big tech companies reliant on EB-2 and EB-3 don’t like country caps, which is why legislation to eliminate country caps has been proposed in Congress continuously since at least 2011. In EB-5, Chinese investors who filed I-526 before 2018 and Indian investors who filed I-526 in 2019-2021 suffer from country caps, while others largely benefit. I’ve written about country cap bills several times over the years and they never passed, but the current version (the EAGLE Act H.R.3648/S.4567) is reportedly actively in play, with a chance to get attached to FY2023 appropriations. And so I’m back with a few comments on the EB-5 effects, in case the legislation does pass.

To understand what a merely-FIFO queue for EB-5 visas would look like, it’s necessary to think about the distribution of the 80,000+ people currently queued up for an EB-5 visa (either already at the visa stage, or on the way at USCIS). The government doesn’t report this valuable intel directly, but I can guess by looking at data for I-526 filings by country and by year, and thinking about where those petitioners must be today based on what I know about petition processing, visa issuance, and the visa bulletin to date. Having estimated the distribution of applicants in today’s queue, I can further project the FY2025 distribution based on what I expect of I-526 processing and visa issuance in 2023 and 2024. I don’t have time to spell out all my thinking on this, but here’s my Excel file of data and calculations. You’re welcome to download and play with this and apply your own assumptions. (One significant variable is attrition from denials/withdrawals/age-outs, which could reasonably turn out much higher than the value entered in my model.) My best guess is that if Congress acts soon to eliminate country caps, and if the country cap elimination takes effect in FY2025 as proposed, then it will have the following EB-5 effects.

Without country caps, the wait times for China-born EB-5 applicants with pre-2022 priority dates will at least have a predictable ceiling, instead of being potentially nearly infinite as is the sad case under country caps plus reserve visas. I estimate that a majority of the Chinese backlog (at least 2016/2017 priority dates) would get visas at least by 2032.
Without country caps, applicants from all countries except China with pre-2022 priority dates who don’t already have a visa by FY2025 could wait until 2032 before they can start getting visas. That estimate considers the number of Chinese applicants with pre-2018 priority dates whom I calculate will still be pre-green-card by 2025 (further considering newly-restricted unreserved visa availability and pending rest-of-world demand). Based on processing trends and factors observable so far, I expect that a significant number of non-Chinese who filed I-526 in 2019-2022 will not have received a visa yet by October 2024 due to slow processing, and thus impacted by country cap removal.
Without country cap limits/projections, people filing I-526 or I-526E after 2022 would be advised to invest exclusively in one of the new reserve visa categories (since the unreserved category will be entirely absorbed by the oldest Chinese applicants if unconstrained by country caps). With country caps, on the other hand, new petitioners from some countries other than China and India might be advised to invest outside a TEA to qualify for an unreserved visa, since 7% of 68% is a lot more visas available than 7% of 20%, 7% of 10%, or 7% of 2%.
Without country caps to hold back and distribute demand, EB-5 categories will quickly become not-current across the board in the visa bulletin.

People are often surprised that applicants who started the EB-5 process years ago remain vulnerable to changing rules and conditions for visa availability. This is true because of when visas get allocated. Filing I-526 does not lock in access to a visa. Petition approval does not lock in access to a visa. The law and conditions that determine the EB-5 visa allocated are those that pertain at the time the visa is allocated — a time years after investment under current processing conditions. For EB-5 to become a stable program, that needs to change. We need more predictability at the time of investment/I-526 filing about the availability and even existence of the visa that incentivized the investment. The U.S. government should want to avoid bait-and-switch.

Country cap removal keeps being pushed in Congress because Employment-Based visas have a live issue — painful backlogs. So long as country cap victims are suffering in decade and multi-decade long queues, country cap beneficiaries cannot expect to rest easy in an unchallenged status quo. Until backlog problems resolve, we can expect to see civil wars over the insufficient few visas available. I would love to see the U.S. government supply EB-5 visa numbers sufficient to reward the investment-fueled U.S. job creation that already occurred based on the promise of such visas. That would be only fair. As things stand, the United States has raised and benefited from about 15 billion dollars in EB-5 investment over and above what it can justify based on current EB-5 visa number limits.

Filed under EB-5 Law & Policy, EB-5 Resources, EB-5 Statistics

10/19 EB-5 Stakeholder Meeting (call recording, I-956 and I-956G for pre-existing RCs, termination risk, sustainment)

October 19, 2022 12 Comments

10/25 Update: USCIS has now published EB-5 National Stakeholder Engagement Talking Points (PDF, 238.48 KB) and National Engagement EB-5 Stakeholder PowerPoint Presentation (PDF, 315.88 KB).

Today USCIS held a substantive and friendly meeting with EB-5 stakeholders. I wouldn’t exactly call it an engagement, since USCIS did not address many questions that we submitted in advance, and responded to the majority of in-person questions with “thank you for your input” and/or “please send this question to the EB-5 Customer Service Mailbox” (a notorious black hole). However, I appreciate that USCIS put all of IPO leadership on-stage to speak to us, and the level of detail shared. Division leaders spoke for nearly an hour, and I learned something. The subsequent Q&A session was short on A, but expressed more solicitude and helpful intent than we’ve heard in a long time. I sensed a litigation subtext, with about half of the content discussing Integrity Act implementation in compliance with the Behring Settlement Agreement, and the other half explaining operations challenged by and exposed in Mandamus litigation.

Besides organizational detail, which I’ll discuss further in a separate post, the teleconference included the following new and controversial input.

Treatment of Previously-Approved Regional Centers and their Investors: USCIS for the first time addressed the question of consequences if a previously-approved regional center chooses not to raise new investment under RIA, and therefore does not file a I-956 by December 29, 2022. IPO Chief Alissa Emmel stated that this (1) will not prevent the adjudication of related Form I-526 and I-829 filed before the passage of the Integrity Act, (2) may result in termination of the RC’s designation, and (3) will not be the basis for denial of the I-526 or I-829 petitions. Ms. Emmel did not address the contradictions in her statement, considering RIA provisions that make termination a potential sole basis for denying petitions. In response to a followup question, Acting Compliance Division Chief Andrew Driscoll Black indicated that a previously-approved regional center must file both I-956 and I-956G this year or be subject to termination, but then admitted that he hadn’t thought about the scenario where a previously-approved RC simply doesn’t have immediate plans to sponsor new projects, and thus no occasion to apply right away to sponsor new projects. Mr. Black advised to submit the question to the IPO customer service mailbox, with an indication that it’s time sensitive. If only USCIS had read and prepared to answer the many advance questions submitted on this urgent topic. See minute 4 and 1:12:13 of my recording.

Annual Report: Although the USCIS website I-956G instructions say that regional centers approved after May 14, 2022 may file the I-956G annual report, the Investor Program Office gave different instructions in the call. Acting Compliance Division Chief Andrew Driscoll Black stated that all regional centers approved prior to October 1, 2022 must file the I-956G annual report for 2022. Alissa Emmel admitted that USCIS has yet to publish information about how to pay the newly-required annual fee, and that USCIS will not impose late penalties on payment of 2022 fees. See minutes 7, 32, and 1:17:00 of my recording.

Sustainment Period: Paul Egan, Acting Policy Division Chief, indicated his understanding that the Integrity Act modifies the sustainment requirement for new investors who file I-526 after the Integrity Act. When pressed about this during the Q&A, Mr. Egan had already left the call and none of the other USCIS reps wanted to confirm or clarify his statement. “We’ll make sure to get a FAQ out for the public very soon.” I’m sure that many advance questions addressed this hot topic, so USCIS should’ve been ready for it. See minute 19:08 and 1:00:00 of my recording.

I’ll comment in more detail when USCIS publishes the prepared statements, as promised. In the meantime, here is a link to my recording of the 10/19 EB-5 Stakeholder Engagement, and an index to recording content. (For future reference, I’m also adding this engagement to my Meeting Log of USCIS EB-5 engagement reports going back to 2009.)

Time Start	Speaker	Topic
0:22	Amanda Atkinson USCIS Office of Citizenship, Partnership, and Engagement	Introduction
3:18	Alissa Emmel, IPO Chief	Introduction
4:02	Alissa Emmel, IPO Chief	RIA implementation updates (Behring Settlement content, RCs that don’t file I-956 by December 29, RC fees)
8:00	Alissa Emmel, IPO Chief	Staffing update (total employment level, discussion of duties and priorities, excuses for lack of resources assigned to adjudication, general statement on hiring plans)
10:22	Alissa Emmel, IPO Chief	Digitization Initiative Update (current initiative to scan I-829 files, indefinite future hopes for ELIS)
12:45	Karen Karas, IPO Deputy Chief	Discussed IPO operations and divisional responsibilities
15:36	Paul Egan, Acting Policy Division Chief	Editorialized about policy change implications of the Integrity Act (including change to the sustainment period requirement) and gave a target to finalize new EB-5 regulations at the end of CY2023.
23:00	Todd Young, IPO Communications and Liaison Team Chief	Discussed IPO communications team staffing and responsibilities.
25:48	Andrew Diroll-Black, Acting Division Chief for Compliance Division	Discussed Regional Center compliance, I-956 forms, I-956 adjudications, RC annual report requirement. Revealed that a major I-956 RFE issue on the question of who should file a I-956H.
33:55	Kevin Murk, Division Chief for Form I-526 Division	Discussed I-526 team staffing, inventory management, workflow management, and excuses for low completion rates.
44:45	Tsa Weatherl, Division Chief for Form I-829 Division	Discussed I-829 team staffing, workflow, excuses for low completion rates, filing tips
52:27	Amanda Atkinson moderating the Q&A session	Questions: 53:44 Carolyn Lee (encouragement to engage, focus specific issues); 58:53 Mona Shah (problems with I-829 extensions, and DOS not recognizing extensions); 1:00:00 Dan Lundy (what is the sustainment period post-RIA and pre-RIA?); 1:03 Rana Jazayerli (I-956 amendment filings, does it preclude also requesting expanded geography?); 1:08 David Morris (encouragement to engage, focus specific issues, suggest ANPRM); 1:12:13 Rohit Kapuria (does previously-approved RC without immediate new projects need to file both I-956 and I-956G this year?); 1:17 Jesse Rios Lone Star Regional Center (which RCs need to file I-956G?); 1:20 Joel Yanovich (problem with incorrect rejection of concurrently-filed I-485); 1:22::40 James Wolf, Golden Pacific (deference to pre-RIA examplars?); 1:25 Michele Franchett (encouragement to engage, question about application of audit exemption to fund administration requirement)

Filed under EB-5 Events, EB-5 Law & Policy, Updates from USCIS

Incomplete EB-5 policy update

October 11, 2022 5 Comments

On October 7, the USCIS Policy Manual was updated with revisions to some of the policy affected by the EB-5 Reform and Integrity Act. In Volume 6 Part G “Investors,” which contains EB-5 program guidance, USCIS updated Chapters 1 and 2 but not Chapters 3, 4, 5, or 6. USCIS also made changes to Volume 7 to add concurrent filing for EB-5 (now allowed since RIA) and to delete priority date protection for EB-5 (now not available since the EB-5 Modernization Regulation was rescinded). The Policy Alert does not acknowledge that Volume 6 Part G is now a confusing mix of half updated and half outdated content, but I trust that USCIS realizes the fact and is still at work to finish the job. For reference, here is my redline document comparison of the October 7, 2022 version of Volume 6 Part G with the previous version dated July 22, 2021. I will comment more when USCIS completes the revision, and look forward to industry reactions. The USCIS website EB-5 pages have also been getting edits, but still not fully updated. Reading the policy manual and the website, I guess that writers have been instructed “as much as possible just quote the law and don’t add any clarifications or further guidance, which could get us sued.”

Filed under EB-5 Law & Policy

I-526, I-829, and I-485 Processing (FY2022 Q3 report and leaked data)

October 7, 2022 12 Comments

Last week, USCIS updated the Immigration and Citizenship Data page with reports for FY2022 Q3 (April to June 2022). I collected EB-5-specific data from the All Forms and I-485 reports, summarized below, and created charts to place the reports in context.

FY2022 Q3 Performance Data Report Excerpt

Form	Description	Received	Approved	Denied	Total Completed	Pending at period end	Processing Time (months)
I-526	Immigrant Petition by Alien Investor	32	264	191	455	12,988	43.8
I-829	Petition by Investor to Remove Conditions	200	340	49	389	11,523	48.1
I-485	I-485 at the California Service Center (WSC)	1,396	372	54	426	5,323

Points I notice in the Q3 data report:

USCIS has not yet started reporting data for the new EB-5 forms (the I-956s or I-526E). The report does include the pending I-924 (139) and I-924A (1,813) that may not ever be adjudicated.
Q3 saw over a thousand I-485 receipts at California Service Center, but only a few dozen I-526 receipts. I’m not surprised, considering that Q3 was the first quarter under the EB-5 Reform and Integrity Act.
Q3 completion rates for I-526, I-829, and I-485 were all much higher than the previous quarter (an encouraging trend), and still very low in context of historical performance and the backlog (a notable fact). Significant room for improvement remains, as illustrated in the long-term trend charts provided below.
Dividing “Pending at period end” by “Total completed” for each form, we can derive a processing time estimate that will apply to a petition at the end of each queue if USCIS continues the same productivity it achieved in Q3. Result: 7.1 years for I-526, 3.1 years for I-485, and 7.4 years for I-829. We need to keep pressing USCIS to increase processing volume going forward, to avoid that unacceptable result. (When I redo the calculation using trailing 12-month completions in the denominator rather than just Q3 completions, then the result stays at 7 years for I-829 but increases to 13 years for I-526 and 6 years for I-485. Yikes! We now know that in 2021/2022, the Investor Program Office lost a large number of its productive staff and kept less productive staff. That’s a problem that that doesn’t solve quickly. I was encouraged to see a few more IPO job announcements this month, and look forward to seeing some results from their work in 2023/24 once they’re hired and trained.)
The Processing Time column in the USCIS report indicates the median processing time of cases decided in the reported quarter. I tend to disregard this number because it’s (1) not predictive (simply reflects one point of past performance) and (2) not generally applicable even to past performance (the processing time range behind this median is extremely wide, as further discussed below).
The I-526 denial rate remains alarming: 42% of I-526 decisions in April to June 2022 were denials. The large number of denials reflects attitudes at the Investor Program Office, particularly toward direct EB-5 cases, and particularly since the EB-5 Reform and Integrity Act protected USCIS from judicial review of unjust EB-5 decisions. (During the RC program lapse, a majority of the reported “denied” I-526 were actually just withdrawn I-526, but the Q3 denials are largely denials.) Litigators, is there anything we can do about systemic adjudication problems behind mass denials, or do petitioners really just have to fight battles individually in the sluggish AAO process?

As an aside, note that USCIS is making what might be a good faith effort to improve case processing reporting, and solicits public input. Here is a copy of an email I received yesterday from USCIS, inviting people who have filed a form with USCIS in the past 12 months (or their advocates) to apply for participation in a focus group. This group will help USCIS “understand if the information provided on the Check Case Processing Times webpage is useful.” Consider applying to participate! It’s always possible that the current Check Case Processing Times page isn’t the way it is out of malice. Maybe USCIS would truly like to design a page that’s useful to applicants wanting to understand processing times, not only useful to USCIS for the purposes of obscuring processing trends and blocking case inquiries.

USCIS data reports show the total size of the EB-5 form workload, and the rate at which USCIS is working on it. USCIS does not officially give visibility into which dates they are actively processing, and which they are leaving behind. For that, we have to consult anecdotal evidence and leaks. I’m not saying where I got the detail reported in the following charts, but I judge that the detail is accurate and close to complete. As illustrated in the charts, the Investor Program Office is far from implementing a first-come-first-served process. This complicates time estimates for individual cases.

Points I note from the unofficial data.

Over the past year, I-829 processing has generally clustered around petitions filed in 2019, but also included many I-829 filed in 2017 and 2018, and a few filed as early as 2015 and as late as 2021. I do not know the reasons for departing from FIFO discipline in I-829 adjudications. Is there an element of randomness in case assignment resulting from paper files and lax management? Is USCIS trying to group I-829 from different filing dates by project, to process the project all at once? Are expedite approvals and mandamus actions having a significant impact? Are certain groups of I-829 intentionally left untouched or taking years of touch time for reasons related to policy or litigation? If anyone would like to leak reasons to me, please reach out on email, phone, or Telegram.
I-526 processing has ranged broadly over the past year. Recent I-526 approvals have settled into a sort of cluster on I-526 filed in December 2018, but also covered many cases from the end of 2019 (probably mostly direct investor petitions assigned during the RC program shutdown), I-526 filed in 2021/22 (probably mostly I-526 with expedites granted – or possibly cherry-picked to make the median processing time report look better) and a wide range of I-526 filed before 2018 (selected out of the unadjudicated backlog for unknown reasons, and incidentally convenient for making the 80^th percentile case inquiry cut-off more restrictive). My charts highlight timing for I-526 approvals and RFEs. The denial picture is more murky, since USCIS mixes denials and withdrawals, but I note generally that denied petitions tend to be older than approved petitions. The data supports a reasonable hypothesis: that the longer an I-526 stays unadjudicated, the more likely it is to end in denial or withdrawal.
USCIS has cleared close to 100% of I-526 filed up through September 2015 (the end of the last long-term RC program authorization), but still has a significant pending inventory of untouched I-526 from every quarter since then. The visa availability approach can explain about half of these left-behind I-526. As a reminder, you can find the most recent breakdown of total pending I-526 by country of petitioner origin in the March 2022 Oppenheim presentation for IIUSA (slide 8). This PDF from October 2018 was the last detailed per-country inventory breakdown published by USCIS. My information for I-829 is less complete, so I did not attempt a detailed I-829 inventory breakdown.

Filed under EB-5 Statistics

Facing FY2023, Suggested Articles, October 2022 Visa Bulletin

September 30, 2022 11 Comments

Today marks the end of Fiscal Year 2022, and the first September since 2015 that I haven’t spent reporting on Congressional news and the appropriations process, waiting with bated breath for updates about regional center program authorization.

Thanks to the EB-5 Reform and Integrity Act of 2022, we now have until September 30, 2027 to panic about legislation to reauthorize the regional center program. EB-5 is stable today in the sense that it neither requires nor anticipates near-term legislative action.

My dream for the future is that EB-5 will also stabilize in the sense of offering a reliable opportunity to immigrate based on investment. In this dream, investor petitions will be processed. Policy will be written. Adjudications will be based on transparent standards, and will have a predictable timeline. Visa availability will be transparent and predictable. Investors who satisfy all the requirements will get a chance to immigrate before they age out, give up, or die. An investment will be an investment, not an unpredictable series of deployments. Escrow protection will be possible. Regional centers will know where their status and responsibilities begin and end. EB-5 issuers will be constrained to make offerings that can and do bear scrutiny as investments. Reasonable exit strategies will be expected and possible. The experience of existing investors will influence a regional center’s ability to attract new investment. Good actors will be empowered to plan well based on good information about the immigration process and success factors. Bad actors will not flourish in impunity underwritten by long processing queue times, policy uncertainty, misdirected adjudication, and lack of communication from USCIS. Both the government and stakeholders will put stock in what happens after investors make investments and file petitions. We’re partway there, and with so much scope for improvement going forward.

To the extent that words can help, I hope and plan to bring out articles on FY2023 visa availability and reserved visas implementation, the scope of exemplar approval, denial factors and issues for attention in IPO adjudications, questions about regional center and investor status after December 29, China timing factors, India timing factors, market size potential and constraints, issues and questions in new forms, and changing project success factors in the wake of the new law. In the meantime, I’ll suggest a reading list of articles from other sources, followed by a comment on the October 2022 visa bulletin.

Reading list:

Fiscal Year 2023 Employment-Based Adjustment of Status FAQs” (09/08/2022) at USCIS.gov. A detailed and informative Q&A from USCIS about the specific processes involved in employment-based visa allocation. Predicts the number of FY2023 EB visas available, settles a question about EB-5 visa carryover, and offers valuable practical tips for I-485.
Reserved Visa Rules, Possible Future Visa Allocation, and Recommendations” (09/09/2022) on the IIUSA blog. Written by Joseph Barnett and Lee Li in consultation with Charles Oppenheim, this article provides clear and updated analysis on reserved visas. The article revised my understanding, particularly with respect to how reserves interact with country caps. Once I get feedback from the authors on a couple points, I’ll publish a revision to my article from April.
IIUSA Questions and Comments for October 19, 2022, EB-5 Stakeholder Engagement (09/16/2022) IIUSA did nice work in articulating many pain points in IPO operations, pointing out why the problems are problems, and suggesting feasible solutions. Now that someone has done all the work to write out these good comments, let’s all read them and amplify them with repetition. (Also FYI, here are the comments I submitted to USCIS, focused on my top concerns of transparency, and the status of pre-RIA regional centers and investors.)
IIUSA Teams Up with Kurzban Kurzban Tetzeli & Pratt to Seek USCIS Records on EB-5 Source of Funds Adjudications (9/7/2022) on the IIUSA blog. This article reports on one step in a very important battle: taking on the new USCIS practice of denying I-829 over source and path of funds that were approved at the I-526 stage. I’m glad to see this critical issue getting attention and action.
How long must you keep EB-5 capital at risk? (9/27/2022) in EB5 Investors Magazine. Robert Divine explains how the EB-5 Reform and Integrity Act changed the EB-5 sustainment period, and the consequences for new investors and redeployment. This is game-changing good news, if USCIS also sees what Robert sees in the law. Another point worth amplifying.

I considered writing an article about the October 2022 Visa Bulletin, discussing what it means for demand to “materialize,” as the visa bulletin notes like to say. Also, pointing out which applicants the visa office accounts for in setting monthly visa bulletin dates, which applicants (by contrast) we need to account for in estimating visa wait times, and what all that means for predicting future action dates. But instead, I made a picture. I hope that just looking at this image can help conceptually. After examining the picture, you may want to consult this presentation and my data summary for most recent available estimates of the number of applicants hidden in the EB-5 process clouds (not yet on the Visa Control radar, but important for us because determinative for future visa bulletins). And then if you still really wish you had an article about the Visa Office perspective behind visa traffic control, I recommend Note F in the November 2021 Visa Bulletin, this article, and the Chat with Charlie for the April 2021 visa bulletin.

Filed under EB-5 Resources, EB-5 Statistics

Genuine EB-5 Engagement Promised

September 1, 2022 35 Comments

I’m overjoyed to report a positive development. For the first time in years, USCIS is holding an EB-5 stakeholder engagement that promises to include engagement — not just updates and not just listening, but “a question-and-answer session to answer questions“(!!!) From 2010 to 2017, USCIS used to hold quarterly EB-5 engagements with updates and live Q&A. I complained at the time about the quality of these engagements, but at least they happened. Communication between USCIS and the EB-5 world started to break down with the end of quarterly meetings in 2018. Over the last five years, there have very few EB-5 updates from USCIS, and only three events that could be considered “engagements” in the sense of involving any dialogue between USCIS and EB-5 stakeholders. No wonder we’ve ended up in such a mess of frustration, hostility, and litigation. But now, USCIS is reaching out with a chance to talk. What a good sign!

USCIS Immigrant Investor Program Stakeholder Engagement Wednesday, Oct. 19|2-3 p.m. Eastern

U.S. Citizenship and Immigration Services (USCIS) invites you to participate in a stakeholder engagement on Wednesday, Oct. 19, from 2 to 3 p.m. Eastern.

During the first part of the engagement, we will share updates on the EB-5 Immigrant Investor Program. We will then hold a question-and-answer session to answer questions, listen to your comments, and seek your individual feedback. We will not address case-specific questions, questions outside the scope of the engagement, or issues under active litigation or likely to be litigated.

We are committed to public engagement, and our stakeholder engagements provide valuable feedback as we work to improve our programs. Participation in this engagement will be virtual. If you would like to submit a question in advance, please send your question to the Public Engagement mailbox at public.engagement@uscis.dhs.gov with the subject line “Question: EB-5 Engagement October 19, 2022” by 4pm Friday, Sept. 16.

To Register: 1. Visit our registration page. 2. You will be asked to provide your email address and select “Submit.” 3. On the next screen, you will see a notification that you successfully subscribed to this event. Once we process your registration, you will receive a confirmation email with additional details. If you have any questions, or if you do not receive a confirmation email within three business days of submitting your registration, please email us at public.engagement@uscis.dhs.gov. To request a disability accommodation to participate in this engagement, email us at public.engagement@uscis.dhs.gov by 4 p.m. Eastern, Friday, Oct. 14. Note to media: This webinar is not for press purposes. Please contact the USCIS Press Office at media@uscis.dhs.gov for any media inquiries. We look forward to your participation!

Filed under EB-5 Events

Factors and Trends Underlying I-526 Processing Times

August 25, 2022 21 Comments

While everyone buzzes about when I-526E can be filed with USCIS (a key point in the proposed Settlement Agreement for the Behring litigation), I consider another critical issue: when I-526/I-526E can be reviewed and approved by USCIS. The processing time topic should concern everyone who wants immigrant investment to possibly result in immigration.

I’ve noted that “about two years” has long been a favorite guess to answer the question “How long does I-526 take?” Actual estimates are tough, and the two-year guess looks relatively tolerable (still longer than I-526 should take, but about the outside limit of how long most EB-5 project developers and investors can imagine waiting in limbo). The guess was also justifiable as an estimate through about 2018, but now quite unmoored from observable processing factors.

Processing times naturally result from the size of the I-526 inventory, the quantity and productivity of resources assigned to I-526 adjudication, and the order of I-526 adjudication. I’ve carefully assembled below a table highlighting data to help ground thinking about these factors.

Consider: back in 2018, the median age of completed I-526 was 18 months. From 2018 to Summer 2022, the number of adjudicators assigned to I-526 fell by 61%. In the most recent officially-reported quarter (January to March 2022), IPO completed 24x fewer I-526 than in the same period in 2018. IPO has over 13,000 I-526 pending today, and has not processed more than 400 I-526 a month since 2018, and not more than 200 I-526 per month since July 2021. How far does that put us from expecting two-year I-526 processing times?

When one collects fees for a service, spends the fees, and then does not deliver the service or even allocate resources to provide the service, that’s generally called fraud. Today, $49 million of spilt I-526 filing fees call from the ground, asking why the United States government has assigned only 26 I-526 adjudicators to handle an inventory of over 13,000 pending investor petitions, offers excuses rather than improvement plans for falling IPO adjudicator productivity, and manages I-526 inventory by defining a large percentage of the inventory as ineligible for processing (via the “visa availability approach”).

People in government and industry who want to pave the way for future EB-5 investment and more I-526 (I-526E) filings must look at processing factors as of today. Witness how conditions have deteriorated since 2018, back when we thought two-year I-526 processing times were long. Consider how much needs to change going forward to allow for the “timely processing” of under a year that Congress wants to see for EB-5 forms according to the EB-5 Reform and Integrity Act of 2022. (Tables can look boring, but persevere. This table highlights significant detail worth thinking about. I have also created a new Processing Data page to house trend charts.)

	2018	2020	2022	Source
Number of I-526 pending as of March 31	20,455	16,633	13,385	A. USCIS Immigration & Citizenship Data page reports
Number of I-526 completed in the quarter ended March 31	3,615	904	152	B. USCIS Immigration & Citizenship Data page reports
Average I-526 completions per working day in the quarter ended March 31	59	15	2	C=B/61
Approximate number of IPO employees as of March	200	245	177	D. USCIS reports in stakeholder meeting notes, Congressional testimony, and/or litigation declarations
Number of employees gained or lost by IPO during the previous 2-year period		45	(68)	E is calculated from D
Number of IPO employees assigned to I-526	67	56	26	F. USCIS reports in stakeholder meeting notes, Congressional testimony, and/or litigation declarations
Percent of IPO employees assigned to I-526 adjudication	34%	23%	15%	G=D/F
Percent change to IPO’s number of adjudicators assigned to I-526 2018-2022			-61%	H is calculated from F
Average I-526 completions per I-526 adjudicator in the quarter ended March 31	54		6	I=B/F
Percent change to IPO’s productivity per I-526 adjudicator 2018-2022			-89%	J is calculated from I
Estimated time (months) to process all I-526 pending as of March 31, assuming that the rate of completion from the most recent quarter continues going forward	17	55	264	K=A/B*3
Median processing time (months) of I-526 completions in this fiscal year	18	31	44	L. USCIS “Historical Average Processing Time Report“
Approximate number of I-526 pending as of March from China-born petitioners	8,600		4,900	M. Estimated from USCIS report for 10/2018; DOS report for 11/2021
Approximate number of pending I-526 with visas available			8,485	N=A-M
Number of I-526 expedite requests granted by USCIS		93	67 (to date)	O. USCIS report in declaration for litigation
Theoretical hours of “Touch time” per I-526 reported by USCIS and used by DHS as a basis to budget for needed I-526 fee revenue		8.65		P. 2019 DHS Fee Rule
Actual “touch time” hours per I-526 adjudication calculated from completions per I-526 adjudicator in the quarter ended March 31	9.0		83.5	Q=(61 days*8 hours day)/Row I
I-526 filing fees associated with pending I-526 ($ millions)	$75	$61	$49	R=A*$3,675
Percent of I-526 decisions in the quarter ended March 31 that were denials or withdrawals (not approvals)	9%	21%	67%	S. USCIS Immigration & Citizenship Data page reports

Considering the factors summarized above, an individual I-526 or I-526E filed today may avoid an unthinkably long processing time if (1) IPO dramatically increases the amount and productivity of I-526 adjudication resources and/or (2) IPO implements exceptions to the nominally First-Come-First-Served order that benefit that particular I-526, or (3) that particular I-526 or a massive number of other petitioners give up and drop out of the process. Addressing adjudication resources is the best and toughest solution. I have noted no IPO adjudicator job announcements yet this year at USAjobs.gov (only five openings for management staff) — UPDATE: but a reader informs me that there was an IPO adjudicator job announcement that closed recently. If and when USCIS hires more staff for EB-5, it takes an average 241 days to move a new USCIS adjudicator from hiring decision to completion of basic training, according to the CIS Ombudsman. IPO has not explained why it has assigned only 15% of its employees to adjudicate the Form that accounts for more than 50% of its fee-paid workload, or whether that allocation decision is open to change. To compensate for resource problems, IPO has fiddled with processing order, implementing multiple queues and a visa availability approach that effectively excludes thousands of I-526 from the processing workload. Petitioners have fought to become exceptions to the dreadful processing average by means of expedite requests and Mandamus litigation. And the new EB-5 law encourages special priority for new I-526 associated with rural projects.

The longer I-526 resource problems remain unresolved, the more IPO will face political and industry pressure to adjust processing order, pushing some subset of pending I-526 forward by pushing the other subset of pending I-526 backward. If the entire system cannot be improved with sufficient resources to provide reasonable processing for everyone, then pressure will build to improve processing times inequitably for at least a few constituents. I do not want to see I-526 processing replicating the cynical tragedy already in place at the visa stage, where “reserved visas” offer to fast-track new applicants by excluding and displacing backlogged applicants. USCIS must address I-526 resources to avoid resorting to processing inequalities and broad-based damage.

I particularly highlight I-526 processing and backlog issues, because I-526 processing is the engine for the entire EB-5 immigration process. But I-526 problems are not unique. USCIS as a whole is laboring under resource and backlog challenges. Current DHS and USCIS leadership recognize and deplore the agency-wide problems, which is encouraging. Their sympathetic attention illuminates the magnitude and the systemic nature of problems, which is useful but less encouraging. In recent statements, webinars, and reports on processing conditions across USCIS, I hear principled commitment to improve more than practical hope for broad-based change any time soon. This shapes my expectations for improvement EB-5 processing – a small part of the total immigration system.

My expectations for processing improvements must also consider mixed incentives even among EB-5 stakeholders. Who is willing to take the first step toward affecting change — identifying and discussing EB-5 processing problems — when the problems look discouraging? Who needs to care if a protracted EB-5 process increases the time to hold EB-5 funds under management and defers government oversight? Who needs to think about what happens after investors file I-526 or I-526E, when most incentives for service providers, projects, and regional centers come before petition filing? Among those motivated to care about immigration outcomes, how many will slog through articles like this instead of clinging to hopeful guesses? Here’s a gauntlet. Let’s see our industry warriors, fresh from successful I-956 battles, take up the fight to salvage processing conditions for investor petitions.

For further insight into the context of EB-5 processing, I recommend the CIS Ombudsman 2022 Annual Report to Congress. “This year’s Report examines the ‘snowball effects’ and pain points associated with backlogs and recommends actions USCIS can take to address not only the human consequences suffered by applicants, families, and employers but also the detrimental impacts on the agency … This article examines how the agency arrived at the crisis of backlogs which is now threatening to overwhelm it and highlights some of the steps it is taking to overcome this challenge.” A really excellent report: thoughtful, substantial, and sympathetic. EB-5 stakeholders should note the insightful analysis of resource constraints (not EB-5-specific, but applicable), and the detailed discussion of the EAD and Advance Parole processes and the expedite process. Regarding parallel issues with Department of State and consular processing, see the study Mounting Backlogs Undermine U.S. Immigration System and Impede Biden Policy Changes (February 23, 2022) by the Migration Policy Institute. See also U.S. Citizenship and Immigration Services: Actions Needed to Address Pending Caseload by the Government Accountability Office (August 18, 2021).

Filed under EB-5 Statistics

RIA Implementation Update (website, forms, litigation, processing)

August 15, 2022 33 Comments

Today marks five months since the EB-5 Reform and Integrity Act (RIA) was enacted on March 15, 2022, and three months since the regional center program gained new authorization. Where are we now?

Amidst the flux on the USCIS website, litigation disputes, questionable new forms, and guidance that’s here today and may be gone tomorrow, this reliable foundation remains: RIA is law. Every regional center application and new investor petition filed today will certainly be approved or denied with reference to the law as updated by RIA. Every interpretation/application question that’s open today will eventually have to be resolved with reference to the law as updated by RIA.

The word “back” has become extremely popular, but the regional center program is not “back” in the sense of “back to the way it was before.” Regional centers are moving forward and finding their feet on a new footing: a law with new requirements and restrictions. Struggling to avoid RIA compliance can only lead to failure, for industry and investors. For better or worse, RIA is the law.

Can new regional center investors file petitions? The day is coming, but it’s been a long wait. The new law says that “a regional center shall file an application with the Secretary of Homeland Security for each particular investment offering through an associated new commercial enterprise before any alien files a petition for classification under this paragraph by reason of investment in that offering.” IPO Chief Alissa Emmel declared on July 15 that “We are currently accepting immigrant petitions based on previously approved exemplars from regional centers. We are also receiving Form I-956F applications from previously designated regional centers.” So far I have heard of just two I-956F receipt notices, though many I-956F applications have been filed over the past couple months and should be acknowledged shortly. For example, USCIS finally issued a receipt notice on August 11 for an I-956F that it received from CMB on July 1. Cautious prospective regional center investors are waiting on I-956F receipt notices so that they can file I-526E according to instructions. (Personally I would not file I-526 relying on an I-924 exemplar approval without I-956F, since I-924 had half the content required for an exemplar under the new law plus different approval standards, and any material change cancels exemplar deference according to the new law.) IPO should at least issue I-956F receipt notices expeditiously, and should also approve or deny I-956F as soon as possible. The exemplar process will only be effective if IPO can process NCE approval requests quickly enough to provide a reliable basis for approvable investor petitions. I wish that IPO will publish a list of approved and denied NCEs, to help regulate the market and stop denied NCEs from still soliciting EB-5 investment and sponsoring I-526E that can never be approved.

The litigation Behring Regional Center LLC v. Mayorkas et al. is still underway. The Preliminary Injunction on June 24 preliminary enjoined DHS from treating pre-RIA regional centers as deauthorized (finding ambiguity in RIA about RC designation). The parties are still discussing how DHS should handle pre-existing regional centers and their existing and new investors under the new rules. The plaintiff regional centers are trying to preserve as much of the pre-RIA status quo as possible, while DHS is fighting for time and leeway to ensure RIA compliance. (For a sense of the back and forth see the IIUSA Notice of Motion for Summary Judgment filed July 21 and the DHS Cross Motion for Summary Judgment filed August 18.) The most recent docket item filed August 12 by DHS discloses that “the parties are substantially engaged in settlement discussions, and an administrative resolution that may render further litigation of this case unnecessary.”

Prodded by litigation, USCIS has made limited adjustments to the EB-5 pages on the USCIS website.

EB-5 Home is updated as of 8/2/2022 to remove references to a repealed RC program and to add one “Alert” that USCIS will no longer accept combined fee payments for I-526/I-526E concurrently filed with status adjustment forms.
About the EB-5 Visa Classification was updated on 7/28/2022 with new sections reflecting the new law on Job Creation Requirements, Capital Investment Requirements, and Immigrant Visa Set-asides.
EB-5 Investors – This page is marked as last reviewed/updated on 8/2/2022, but the information provided on this page is outdated and inaccurate to the new law except for the “alert” in the header.
EB-5 Filing Tips – This page is marked as last reviewed/updated on 6/23/2022, but only one form title was changed. The page continues to give info that was accurate in December 2020 but now outdated/inaccurate.
EB-5 Regional Center Compliance Reviews – this page was last updated in 2020 and the info provided is now outdated/inaccurate
Approved EB-5 Immigrant Investor Regional Centers – this page still shows the regional center list as of October 24, 2021.
EB-5 Resources – This page links to the EB-5 Questions and Answers (updated April 2022) document most recently revised as of 7/11/2022. The latest Q&A deletes the previously-provided answers about regional center authorization repeal and investor petition grandfathering. The Q&A is currently silent on how USCIS treats pre-RIA regional center and their investors.
EB-5 Support – This page has been updated as of 7/27/2022 to link to new EB-5 forms (and now interestingly links to no regional center annual statement form – not I-924A and not I-956G – though I-956G remains available on the USCIS website.)
USCIS Policy Manual Volume G Part G Investors has not been updated at all as of August 15 except with an Alert noting that RIA was enacted and “USCIS is reviewing the new legislation and will provide additional guidance, including an eventual revision of Policy Manual content.”

USCIS has published six new forms that will need to be revised eventually in response to litigation and to correct errors and omissions: Form I-956 Application for Regional Center Designation, Form I-956H Bona Fides of Persons Involved with Regional Center Program, Form I-956F Application for Approval of an Investment in a New Commercial Enterprise, Form I-956G Regional Center Annual Statement, Form I-526, Immigrant Petition by Standalone Investor, and Form I-526E Immigrant Petition by Regional Center Investor. These forms can be filed despite their faults; lawyers and advisors just have to go the extra mile to think through what the law requires and what USCIS can be expected to request or should accept beyond what’s in the forms. I particularly look forward to USCIS revising I-956G Annual Statement (which is predicated on the now discredited interpretation that RIA canceled pre-RIA regional center designations), and the new I-526E (which conflates ownership with decision rights over EB-5 investment in the definition of “persons involved”).

We’re used to living with inadequate instructions, as USCIS has a history of disconnect between form content and adjudication standards. For example among AAO I-526 denial decisions in 2021, a third cite lack of documentation for currency exchanger source of funds – a type of evidence that Form I-526 never has and still does not request. I-526 routinely get denied for not providing such evidence, because RFEs and decisions can point to justification in the law although USCIS doesn’t publicly request the evidence in their forms, instructions, filing tips, or policy manual. Or consider the issue of source of funds for enterprise owners not seeking immigration benefits. Form I-526 does not ask each petitioner to provide and depend on lawful source of funds documentation for every other investor in the NCE. But USCIS still denies I-526 for lack of such documentation. EB-5 practitioners have had to get used to looking past form instructions to figure out what EB-5 submissions need to succeed with USCIS. This challenge increases with room for interpretation in new EB-5 law. (And the new law sadly increases the stakes and risks of ambiguity, because RIA removed the possibility of judicial review for unreasonable USCIS interpretations.)

EB-5 processing volumes have yet to recover from the regional center program shutdown or the new law (not to mention the 2019 Reset Training at IPO), but I keep watching and hoping. I will shortly publish a separate post and new pages with the updates I’ve been collecting on I-526 and I-829 processing, adjustment of status, consular processing, the backlog and visa availability, and processing conditions generally. At least broader processing problems and the dire consequences have started to get better recognition from the government and media, which is a good step toward change.

People are welcome to use this blog comment section as a forum for sharing experience and asking questions, but note that larger and better arranged EB-5 groups are also available, including https://goaiia.org/, https://t.me/EB5VisaGroup, https://t.me/+NWEYhY6y81AzYzIx, and https://t.me/+N0K7TuzrPYQwMDJl Email suzanne@lucidtext.com if you know of other groups that I should mention, or if you need help joining a group.

Filed under EB-5 Law & Policy

New Form I-526E and Revised FAQ

July 12, 2022 18 Comments

On July 11, USCIS deleted five Q&A from the EB-5 Questions and Answers (updated April 2022) document linked to the EB-5 Resources page. This update successfully deletes all references to repealed regional centers. The update also removes all input on important questions of when investors can file I-526, how USCIS treats I-526 filed before the new law, and how regional centers maintain and amend designation.

On July 12, USCIS announced a new Form I-526 and Form I-526E. The announcement includes the important reminders that “a potential immigrant investor cannot file Form I-526E until the regional center has filed Form I-956F for the particular investment offering” and “Forms I-526 and I-526E must be submitted in compliance with new program requirements.” I will analyze the new forms as time permits. [UPDATE: USCIS has now sent a second announcement email with slightly different content and additional info about fees, copied below.]

From: U.S. Citizenship and Immigration Services <uscis@public.govdelivery.com>
Sent: July 12, 2022 2:12 PM
Subject: USCIS Releases New Forms for Immigrant Investor Program

USCIS is revising Form I-526, Immigrant Petition by Alien Entrepreneur, to accommodate the EB-5 Reform and Integrity Act of 2022, which made significant changes to both the filing and eligibility requirements for investors under the EB-5 program. The form will be split into two versions: Form I-526, Immigrant Petition by Standalone Investor, and Form I-526E, Immigrant Petition by Regional Center Investor.
—Form I-526 will be used by standalone immigrant investors who are not seeking to pool their investment with additional investors seeking EB-5 classification, and will closely resemble the prior edition of Form I-526.
—Form I-526E will be used by immigrant investors who are seeking to pool their investment with one or more additional investors seeking EB-5 classification under the new regional center program.

We created Form I-526E to reflect elements of the new regional center program, including the ability to incorporate evidence by reference from a regional center’s Form I-956F.

By statute, a potential immigrant investor cannot file Form I-526E until the regional center has filed Form I-956F for the particular investment offering through an associated commercial enterprise that the potential immigrant investor is investing in. Once the regional center has received a receipt notice for the Form I-956F confirming its filing, investors may then file their associated Form I-526E based on that receipt notice.

Effective July 12, 2022, Forms I-526 and I-526E must be submitted in compliance with new program requirements. The filing fee is $3,675 for each form. Visit the forms pages for additional information about the filing fees and biometric fees.

From: U.S. Citizenship and Immigration Services <uscis@public.govdelivery.com>
Sent: July 12, 2022 5:52 PM
Subject: Revision of Form I-526

Revision of Form I-526 We have released a revised version of Form I-526, Immigrant Petition by Alien Entrepreneur, splitting it into two versions to accommodate the EB-5 Reform and Integrity Act of 2022, which made significant changes to both the filing and eligibility requirements for investors under the EB-5 program.

Background
Form I-526, Immigrant Petition by Standalone Investor Form I-526 is filed by “standalone” immigrant investors who are not seeking to pool their investment with one or more additional investors seeking EB-5 classification.

Form I-525E, Immigrant Petition by Regional Center Investor Form I-526E is filed by immigrant investors who are seeking to pool their investment with one or more additional investors seeking EB-5 classification and who must now do so under the Regional Center Program. Regional Center investors will also use Form I-526E to report any amendments necessary to establish ongoing eligibility if the regional center, new commercial enterprise, or job-creating entity in which the investor has invested is terminated or debarred from participation in the Regional Center Program.

Filing Fees
The filing fee for Form I-526 is $3,675. The filing fee for Form I-526E is $3,675 (add the $85 biometrics fee for a total of $3,760, where applicable. See exceptions below). On and after October 1, 2022, an additional $1,000 fee will be required under the EB-5 Reform and Integrity Act of 2022. Note: The biometric services fee is not required for petitioners filing the I-526E to amend a previously filed petition.

Additional Information
Forms I-526 and I-526E that are properly filed will receive two separate receipt notices. The first notice you should expect to receive will be from the USCIS Lockbox, acknowledging receipt of your I-526 or I-526E and the total fee amount received and processed. Next, we will issue a formal receipt notice that includes the assigned receipt number for the application when data entry has been completed. The priority date for the Forms I-526 and I-526E will be the date USCIS Lockbox receives your petition.

For more information on the EB-5 Immigrant Investor Program, please visit the USCIS website.

Filed under EB-5 Law & Policy

Behring injunction shifts compliance risks

June 27, 2022 5 Comments

Who bears the burden of waiting for USCIS to ensure regional center compliance under the EB-5 Reform and Integrity Act of 2022 (RIA)? Who takes the risk that USCIS will find some pre-RIA regional centers and their projects not compliant under all the new rules?

At first, the answer was: regional centers bore the compliance wait and the risk of denial. On April 11 and April 29, the USCIS website posted announcements to the effect that regional centers needed to wait for USCIS to approve new designation applications before sponsoring EB-5 investment. (USCIS justified the announcement with the interpretation that RIA cancelled all pre-RIA regional center designations.) This approach offered some protection for incoming investors (who would benefit from advance compliance review by USCIS), confusion and alarm for past investors (who found their previous RC sponsor status and compliance responsibilities cancelled), and pain for regional centers authorized under the old law (who wanted to resume business, not be held back by lengthy USCIS processing times for compliance review under the new law).

Naturally, previously-designated regional centers sued USCIS over the April website announcements. On June 24, a judge took preliminary action on one of the lawsuits, Behring Regional Center LLC v. Mayorkas et al, issuing an “Order Granting Plaintiff’s Motion for a Preliminary Injunction.” The order does not change RIA, or regional centers’ responsibility to comply with RIA, or USCIS’s ability to control the process (and it doesn’t decide the lawsuit). But the order finds that USCIS was likely in error to take for granted that RIA cancelled all pre-RIA regional center designations. By pulling the legal justification out from under USCIS’s website announcements, the injunction potentially opens a window for formerly-designated regional centers to raise new capital during the transition period while USCIS implements and assesses compliance under the new law. (Hopefully, the injunction also makes USCIS reconsider regional center responsibility for capital raised under the old law.)

Today, prospective investors are invited to take the compliance wait and risk. I’ve already received several marketing emails from regional centers designated under the old law, urging potential immigrants to invest with them immediately and file I-526 right away. The approvability of such new I-526 will depend on the outcome of USCIS’s assessment of regional center and project eligibility under RIA (which assessment will happen in the context of I-526 review, if not earlier). But who needs to care about the immigration risk, if EB-5 investment can be banked today and deployed regardless of future USCIS decisions?

If I were a prospective EB-5 immigrant willing to gamble today, I would consider trying to mitigate the risk by asking for escrow, with release of funds on I-526 approval or I-956F approval, and an exit option after a defined period in case of no action by/response from USCIS. Regional centers fought to avoid the wait and risk of USCIS’s potentially lengthy and capricious process to figure out law interpretation and compliance. Investors may also want to protect themselves from that process and risk. Meanwhile, if I were a regional center, I would still go ahead with filing the new I-956 applications. These forms have material that RIA unambiguously requires USCIS to collect and review for all regional centers, including those designated prior to RIA, and RCs should benefit from getting that submission and review done as soon as possible.

I recommend that everyone read the text of the preliminary injunction, to see what it does and – more important — does not say. The order’s content has been misrepresented in the PR I’ve seen about it so far, so caution is needed. I’m also watching the USCIS website EB-5 page, to see if/when USCIS exercises their power to choose another basis for making regional center sponsors undergo some kind of review process before new regional center petitions can be accepted. And finally, a few key quotes from the injunction.

In short, the Integrity Act does not clearly answer the question whether Congress meant to strip existing regional centers of their authorization. But the agency provided no other explanation for its decision. It stated only that because Congress “repealed Section 610, . . . regional centers previously designated under section 610 are no longer authorized.” The agency’s conclusion therefore rests on a misreading of the law: USCIS thought itself compelled by the Integrity Act to treat the existing regional centers as deauthorized, even though the Act does not require that outcome. Had the agency considered the question, balanced the competing interests at stake, and arrived at a decision on the continued status of existing regional centers, perhaps the agency could successfully defend its action.

…Accordingly, USCIS is preliminarily enjoined from treating as deauthorized the previously designated regional centers based on its almost certainly erroneous interpretation of the Integrity Act. Of course, the agency may do whatever is reasonably necessary to ensure that the existing regional centers comply with the Integrity Act, but those centers must presently be permitted to operate within the regime created by the Act. This includes processing new I‑526 petitions from immigrants investing through previously authorized regional centers like Behring, just as the agency would do for a newly approved regional center.
The preliminary injunction will remain in place until the earlier of: (1) a ruling on summary judgment by this Court; or (2) a reasoned decision by the agency about how regional centers should be treated given the Integrity Act’s ambiguity. Perhaps, after engaging in a reasoned decision‑making process and considering the competing policy factors, the agency could conclude that Behring and the other previously authorized regional centers can no longer operate until they have successfully reapplied by submitting new I-956 petitions. Perhaps the agency could conclude that the centers must reapply but can operate consistent with the requirements of the Integrity Act pending their new applications. Or perhaps the agency could conclude that the centers can operate without reapplying so long as they otherwise comply with the Act’s requirements. But what’s clear is that the agency cannot deem the existing regional centers deauthorized without engaging in reasoned decision-making consistent with the APA.

Filed under EB-5 Law & Policy

I-526 Processing Update (May 2022)

June 17, 2022 32 Comments

Of the many battles to fight in EB-5, a critical one remains the situation at the Investor Program Office. The EB-5 program and visa issuance depend on IPO functioning to administer the program and process petitions.

With three months since Congress passed the new EB-5 law, is IPO back to work? Witness the number of I-526 approvals in recent months, in context of IPO’s performance since 2014.

As illustrated, processing volume remains not merely suboptimal, but almost vanishingly small. This is extremely concerning, in light of what IPO demonstrably could do and needs to do.

To at least advance sufficient applicants to claim the average 10,000 EB-5 visas available annually, IPO needs to at least approve about 3,600 I-526 per year (considering an average 36% of EB-5 visas have gone to principal applicants). In the first 8 months of FY2022, IPO has only approved 223 I-526. IPO management might proudly point out that they have improved since the new EB-5 law, approving almost 100 I-526 in May 2022, compared with only 9 in February 2022. This is “next to nothing” improving on “nothing.” A rate of 100 approvals a month is still three times too low to avoid wasting EB-5 visas in a normal year, five times too low to avoid wasting visas this year, and ten times too low to provide timely processing for over 13,000 pending I-526 petitions. The necessary recovery is not even close to complete. If IPO thinks that May 2022 was anywhere near “back to normal,” we’re in trouble.

I start with a focus on I-526 approvals, since that’s what drives the EB-5 process. Everyone from prospective investors to DHS leadership to Congressional representatives should care if the EB-5 process is grinding to a halt because USCIS is stalling Step 1.

A closer look at the data reveals other details of interest.

We can see what happened when the regional center expiration as of July 2021 left USCIS to focus on the direct EB-5 I-526 inventory. IPO ramped down activity overall, and what it did was mainly to RFE and deny petitions with priority dates from before 2015 through late 2019. And then with the return to regional center I-526 processing since March 2022, we see I-526 activity going back to concentrate on late 2018 priority dates, with a modest uptick in volume, more decisions than RFEs, and denial rates still high. USCIS had been mainly processing I-526 with October to December 2018 priority dates back in early 2021, before the regional center processing freeze, so I’m not surprised to see those dates back on the table now. Many 2019 decisions in May 2022 were likely on direct petitions that had received RFEs during the shutdown. But overall, processing is evidently not first-in-first out. On any given day, the handful of EB-5 actions completed can include I-526 with priority dates anywhere from 2013 to 2022. As a supervisor looking at these charts, I would question IPO management about its disordered process as well as about its low productivity.

Needless to say, USCIS did not intend to share such granular and timely data. USCIS has edited the processing times report to report only outliers and only 6-month averages, officially publishes limited performance data only after a half-year delay (last published report was October-December 2021), and does not answer my FOIA requests. Fortunately, USCIS also leaks. The above data is from a leak that I am delighted to report, as someone concerned about my clients’ future and EB-5 program integrity. The Investor Program Office is acting as if it could count on darkness and inattention. May the record of its irresponsible performance come to the attention of USCIS leadership who want reforms, and of Congressional representatives who care about the integrity, reputation, and functionality of EB-5.

At the EB-5 listening session on April 29, 2022, USCIS Director Jaddou recognized that “The EB-5 investor program allows individuals to become vital and contributing members of the United States. It also strengthens our communities across the country by encouraging foreign direct investment and creating jobs.” She also stated that “I firmly believe that every applicant who seeks a benefit from USCIS is entitled to a timely decision – be it a yes or no. This is about delivering tools to our workforce to efficiently and effectively adjudicate cases and reduce processing times.” Time to see that vision work its way down to IPO.

(I could also discuss I-829 processing data, with similar concerns, but consider the I-526 problem in most urgent need of publicity as an integrity, public policy, and market issue.)

Filed under EB-5 Statistics

Regional Center reporting and NCE approval forms released

June 2, 2022 12 Comments

From: U.S. Citizenship and Immigration Services <uscis@public.govdelivery.com>
Sent: June 2, 2022 2:50 PM
Subject: USCIS Releases New Forms for Immigrant Investor Program

U.S. Citizenship and Immigration Services has released two new forms under the EB-5 Reform and Integrity Act of 2022, which revised INA 203(b)(5).

The new forms are: Form I-956F, Application for Approval of an Investment in a Commercial Enterprise, and Form I-956G, Regional Center Annual Statement.

Form I-956F is a new form that can only be filed by an approved regional center. Form I-956F is similar in some respects to an “exemplar” submission on Form I-924 under the previous program; however, Form I-956F is required by statute for regional centers to apply for approval of each particular investment offering through an associated new commercial enterprise.

Form I-956G takes the place of Form I-924A from the previous program but incorporates the increased statutory reporting requirements.

The next series of forms USCIS will be releasing are Form I-526, Immigrant Petition by Standalone Investor, and Form I-526E, Immigrant Petition by Regional Center Investor. USCIS will notify stakeholders once these forms are available on our website.

Effective June 2, Forms I-956F and I-956G must be submitted in compliance with new program requirements. The filing fee is $17,795 for Form I-956F and $3,035 for Form I-956G.

Filed under EB-5 Law & Policy

Comments on the new Form I-956 Application for Regional Center

May 17, 2022 12 Comments

As of this week “EB-5 2.0” has officially launched, with a new regional center program authorized since May 14, 2022. Now that 60 days have passed since enactment, the EB-5 Reform and Integrity Act of 2022 (“RIA”) has taken full effect. New regional center I-526 still cannot be filed, and none of the USCIS EB-5 pages or policies or petitions have yet been updated with the rules now in effect. But one EB-5 2.0 process is moving: entities can begin to apply for new regional center designation.

On Friday, USCIS published Form I-956 Application for Regional Center Designation and the associated Form I-956H Bona Fides of Persons Involved with Regional Center Program on the USCIS website Forms section.

Form I-956 asks open-ended questions, and provides minimal instructions. I-956 requests less evidence than the previous I-924 Application for Regional Center – whether intentionally or not, it’s hard to tell. I foresee that 100% of Form I-956 submissions will receive a Request for Evidence, given the minimal instructions. Until we start seeing RFEs from USCIS, we need to guess at how USCIS interprets new regional center designation requirements. I wonder if USCIS has drafted the Form I-956 worksheet for adjudicators, and what’s on that worksheet. If only USCIS would tell the public what’s on its adjudication checklists, then we might make submissions correct and complete the first time. The guess-question-clarification process is inefficient, and the regional center program does not have years to waste.

Top Takeaways from Form I-956 Application for Regional Center

What’s New: I-956 and I-956H are almost entirely language copied straight from the RIA text, without interpretation or comment. The I-956 instructions offer one item of additional guidance: “The description [of policies and procedures] may include, but is not limited to, the regional center’s policies and procedures regarding internal controls, risk management and assessment, governance, and fraud detection and/or deterrence. Documentation may include, but is not limited to, Policy Manuals and Standard Operating Procedures.” I-956 offers no comment on what USCIS considers to be the specific “applicable laws” and “program requirements” for which applicants should provide policies and procedures.
Evidence Required: Form I-956 specifies little required evidence. While the old Form I-924 Application for Regional Center had a seven-point list of “evidence you must submit,” Form I-956 has mostly open-ended questions, and says ”may provide” more often than “must submit.” An applicant following the letter of the I-956 instructions (and interpreting “should” as closer to “may” than “must”) could technically submit I-956 with the form blanks completed but no exhibits whatsoever beyond copies of the Form I-956H for persons involved. As an applicant I’d be tempted to go for a minimal initial filing, considering that I can hardly avoid an RFE in any case, given the vague and minimal instructions provided upfront.
RC History: Form I-956 implies that USCIS has no interest in and attaches no relevance to the applicant’s previous history of regional center designation. I-956 asks only forward-looking questions. I-956 gives no space to provide information about any prior regional center designation, good or bad history of promoting economic growth as a previously-designed regional center, previously-approved geographic scope, in-progress EB-5 projects, or EB-5 funds currently under management. There’s no indication in I-956 that USCIS has any plan to link designation and investors under the new law with designation and investors under the old law. The I-924 had required disclosing the applicant’s previous regional center termination and denial history, and prohibited use of names that duplicated pre-existing RC names, but the I-956 lacks even this.
Geographic Area: Form I-956 is less specific than I-924 about regional center geographic area and economic impact. I-956 says generally “You should provide evidence that the regional center’s pooled investment will have a substantive economic impact on the proposed geographic area,” and asks for “reasonable predictions” supported by economic impact analysis. But it does not define “substantive impact” or request project-specific basis for predictions. By contrast, Form I-924 required the applicant to base economic impact analysis on business plan inputs, and to show “that the boundaries of the regional center are reasonable based on evidence that the proposed area is contributing significantly to the supply chain and labor pool of the proposed new commercial enterprises.” Either USCIS was careless in writing I-956, or it now has a looser/more open-ended standard than before for geographic area requests. It may be that by separating regional center designation from NCE/project approvals, USCIS has blocked itself from demanding project-specific grounding for regional center impact claims. If that’s the case, surely all applicants will submit theoretic cases for sprawling multi-state geographies.
Organizational Evidence: The “who are you” questions in Form I-956 are limited to identifying the legal name of the regional center entity and the identities of persons involved with the regional center. Unlike I-924, Form I-956 does not specifically request the regional center’s formation documents, Operating Agreement, or management agreements. I-956H requests personal identity detail needed to check for law/rule violations, but not any of the business experience or professional track record detail that a banker or investor would want to know about persons involved. This may or may not be an oversight.
Business Plans: The “what will you do” questions in Form I-956 are limited to compliance policies and theoretic economic impact predictions. I-956 does not specifically ask the applicant for any kind of business plan, either for regional center operations or to support economic activity projections. (By contrast, I-924 required an Operational Plan and Plan of Promotion to describe how the regional center would operate and support its operations, and project business plans to provide reasonable real-world inputs to support impact analysis. The I-956 silence on business planning may or may not be an oversight. Surely such detail should still be relevant for designation.)
Further Guidance: The I-956 instructions promise that “The approval notice will provide information about the responsibilities and obligations of your USCIS designated regional center. It will also list the evidence to submit in support of regional center-associated individual EB-5 petitions, as well as details on the reporting and oversight requirements for regional centers.” Why not disclose the approval notice template upfront, USCIS, so that applicants can shape their plans around these requirements?
NCE Approval Form: The Form I-956H Instructions reveal that USCIS has chosen a name for the yet-to-be-published project approval form that needs to be filed before regional center investors can start filing I-526. The application for NCE approval will be called Form I-956F. (In the old days, applicants could file for regional center designation and exemplar project approval at the same time using the same I-924, but now the process has two separate and consecutive forms.)
Timing: I foresee significant processing times for Form I-956 (given the back-and-forth that will result from the open-ended questions and minimal instructions), and for I-956H (given the number of agencies that USCIS will need to coordinate with to perform security checks). I will be pleasantly surprised if the first new regional center gets designated before 2023, and astonished if all I-956 filed in the next few weeks get adjudicated before 2025. [Update: The May 18 Declaration of Alissa Emmel in the Behring lawsuit states that: “IPO … as of this date has received approximately 8 applications. …While every application will be reviewed on a case-by-case basis, IPO aims for its processing times on Form I-956 applications to meet or exceed the statutory goal of 180 days.”] I very much hope that the first applicants to receive RFEs will be public-spirited and share the RFEs with the rest of the community. The more guidance we can extract from USCIS, the more we’ll be able to improve application quality and speed up the adjudication process for everyone.
Caution: Historically, an EB-5 document requirement will spark a cottage industry of chancers who smell profit in producing documents with the right title on a nice cover and any old filler shoved under the cover. Thus the proliferation of shoddy economic impact reports, business plans, and offering documents in EB-5. I suggest, look closely at anyone who offers to relieve you of thousands of dollars in exchange for documents with covers that that say “Policy Manuals” and “Standard Operating Procedures.” If there isn’t an EB-5-experienced securities attorney involved in drafting and signing off on the content, consider only paying what the cover is worth. USCIS adjudicators may have little way to judge compliance policies but by the cover, and might possibly just rubber stamp whatever gets submitted. But even better for regional center applicants to invest in solid content, especially in the sensitive area of securities compliance.

Filed under EB-5 Law & Policy, Updates from USCIS

5/25 USCIS EB-5 Feedback Invite

May 17, 2022 1 Comment

I’m copying below an invitation from USCIS to participate in another EB-5 listening session. The invitation asks some excellent questions, but oddly — considering the engagement’s stated purpose — no questions specifically related to implementation of the EB-5 Reform and Integrity Act of 2022, or the rulemaking required by the Act. The invitation also offers no way to answer the questions, except to call in to the engagement. If USCIS is serious about getting solid feedback, it should provide a path for written answers.

From: U.S. Citizenship and Immigration Services <uscis@public.govdelivery.com>
Sent: May 17, 2022 8:09 AM
Subject: Listening Session: EB-5 Reform and Integrity Act of 2022 Rulemaking

EB-5 Reform and Integrity Act of 2022 Rulemaking Listening Session

Wednesday, May 25 | 2 – 3 p.m. Eastern

U.S. Citizenship and Immigration Services (USCIS) invites you to participate in a listening session on Wednesday, May 25, 2022, from 2 to 3 p.m. Eastern. The listening session is for stakeholders to provide individual input on rulemaking related to the implementation of the EB-5 Reform and Integrity Act of 2022. USCIS is committed to public engagement and sessions such as these provide us with valuable feedback as we work to improve our programs.

Questions for consideration: Although we are interested in overall feedback about the EB-5 program, we would also appreciate your input on the following questions:

1. Evidence
a. Are there evidentiary requirements for Form I-526 filings in the existing regulations that should be simplified or modernized? We invite specific estimates of these burdens and potential effects of these simplifications.

2. Definitions
a. Are there undefined or other ambiguous terms in the existing regulations or statute that DHS should define or clarify through rulemaking?
b. Should we keep the “troubled business” definition in the existing regulations (8 CFR 204.6(e), 204.6(h)(3), and 204.6(j)(4)(ii))? If we keep the definition, should we revise it and, if so, how?
c. Should we keep the definition of “new” for a commercial enterprise in the existing regulations? Is there an alternative approach for what should be considered “new” (for example, a more recent cutoff date or a particular period for determining whether a commercial enterprise is “new”)?

3. General
a. Are there other processes or requirements in the existing regulations or statute that DHS should clarify or further develop through rulemaking? For example:
• The process we will use to designate and communicate high unemployment areas.
• Factors we should consider in determining if a regional center’s geographic area is “limited.”
• How construction jobs for less than two years will be calculated.
• Are the expansion and restructuring requirements in the existing regulations still relevant?

To Register:

1. Visit our registration page

2. You will be asked to sign up for updates or to access your subscriber preferences, please enter your email address and select “Submit”

3. Select “Subscriber Preferences”

4. Select the “Questions” tab

5. Complete the questions and select “Submit.”

Once we process your registration, you will receive a confirmation email with additional details.

If you have any questions, or if you have not received a confirmation email within three business days, please email us at public.engagement@uscis.dhs.gov.

To request a disability accommodation to participate in this engagement, email us at public.engagement@uscis.dhs.gov by 4 p.m. EST on May 20, 2022.

Filed under Updates from USCIS

USCIS Processing Times Webpage Redesign

May 11, 2022 21 Comments

From: ProcessingTimesFeedback <ProcessingTimesFeedback@uscis.dhs.gov>
Sent: May 11, 2022 5:18 PM
To: Suzanne Lazicki <suzanne@lucidtext.com>
Subject: RE: USCIS Processing Times Webpage Redesign Webinar

Excellent feedback!

Thank you,

USCIS

From: Suzanne Lazicki <suzanne@lucidtext.com>
Sent: May 11, 2022 4:54 PM
To: ‘ProcessingTimesFeedback@uscis.dhs.gov’ <ProcessingTimesFeedback@uscis.dhs.gov>
Subject: USCIS Processing Times Webpage Redesign Webinar

Thank you for the opportunity to provide feedback for the USCIS Processing Times Webpage Redesign Webinar to be held on May 12, 2022. I appreciated the announcement on May 5 that USCIS is Simplifying, Improving Communication of Case Processing Data. I would like to point out the following issues that make the new processing times report design not clear, not transparent, not meaningful, and not helpful.

The https://egov.uscis.gov/processing-times/ page now reports a number that is apparently arbitrary. What is relevant about 80%? Why not report the median age of recent completions? (The USCIS historical processing times report gives the median, which is logically more indicative of “normal” and “average” processing.) Why not the first and third quartile? (That would at least be meaningful statistically.) Why not 93%? (Significant if the threshold for case inquiry.) What possible justification/explanation is there for choosing to report 80% on this page? Unless explained, it would appear the USCIS chose 80% to 1) cover up the major deviations from FIFO processing that had been exposed by the previous “estimated time range” method, 2) prevent petitioner inquiries by not reporting median or average processing, and 3) confuse and disguise the derivation of the Case Inquiry Date, which is not calculated from the 80% month. I suggest that this page would be more meaningful if it reported the median (or even better, the median and the average) age of recently-adjudicated cases. The number of months used to calculate the Case Inquiry Date should also be disclosed.
The https://egov.uscis.gov/processing-times/ page is not clear or transparent about the Case Inquiry Date – the single most important piece of information on the page. The “get inquiry date” tool on this page uses a month multiplier that is not disclosed, and is not equal to the 80% month reported on the page. The page vaguely says “we only allow inquiries for cases that are well outside the processing time listed above.” To be transparent, this page needs to state “93% of recent adjudications were completed within ___ months,” and then explain that this number of months is used to calculate the case inquiry date.
The case inquiry date and answer to the question “When can I ask about my case” are both unreasonable. To protect USCIS from Mandamus litigation (which must be much more expensive to the agency than individual inquiries), the processing times report needs to define a reasonable boundary for “normal” processing. Outside the 93^rd percentile is too-obviously a boundary for extreme outliers, not a definition of what’s normal – especially given the well-documented spread of processing times. For example, for Form I-829, the historical times page gives a median of 41.5 months in 2022, and the I-829 Case Inquiry Date is calculated at 64.8 months. What judge will believe that a I-829 petitioner should have to wait 15 months longer than the median processing time to even inquire about case status? The 64.8-month case inquiry boundary in the processing times report is too-blatantly unreasonable, and appears to be arbitrarily set to prevent inquires.
Strictly speaking, the processing times report simply and only reports past performance. But the USCIS Report and More Info pages do not speak strictly, but as if the past performance numbers were true for all time and predictive for the future.
1. “We display case processing times for select forms and locations to let you know how long it generally takes to process benefit requests.” This sentence conflates “how long it has recently taken” with “how long it generally takes.” This conflation is false and misleading, implying a status quo where none exists. USCIS has a history of large processing time fluctuations, and actively plans on processing time changes going forward. The sentence had better be “We display case processing times for select forms and locations to let you know how long it has recently taken to process benefit requests.”
2. “80% of cases are completed within” This language is misleading, when in fact the number only represents “the amount of time it took us to complete 80% of adjudicated cases over the last six months.” At minimum, the verb “are” should be replaced with “were” or “have been.” Or could replace “80% of cases are completed within” with “80% of recent adjudications completed were within”
3. “The earliest you can submit questions is _____. Please do not contact us before this date.” This statement has two problems: it directly uses past performance to predict future results, and it implies that the date given in the sentence is a firm barrier not subject to constant change. The sentence copies the time it took to complete 93% of adjudications over the past six months and pastes it into the future, which is only meaningful if USCIS plans for no improvements over past performance. But USCIS does plan improvements, so the prediction is not meaningful. And it is not even a prediction, given that a petitioner consulting the page from month to month will see the “earliest you can submit questions” sentence populated with ever-changing dates that fluctuate forward and backward in time depending on recent adjudications. To make the sentence transparent and meaningful, better to say something like “You may not submit questions until your case has been pending longer than __% of recent adjudications. If your receipt date is before _______, you may submit questions.” It’s meaningless to give a sentence that predicts a future date, if the given date is not actually intended or usable as a prediction.
USCIS announced new cycle time goals on March 29, 2022 for multiple forms. If USCIS is serious about making progress toward these cycle time goals, and willing to be transparent and responsible to the public, USCIS should regularly publish current cycle times for those forms.

Filed under EB-5 Resources

4/29 USCIS Q&A and Listening Session Report

May 3, 2022 5 Comments

On Friday April 29, USCIS offered a first installment of guidance on implementation of the EB-5 Reform and Integrity Act of 2022.

USCIS published EB-5 Questions and Answers (updated April 2022) on the USCIS EB-5 Resources page. I’m copying images as of April 29 here for historical reference, but consult the USCIS site to read the latest version.

USCIS held the USCIS EB–5 Reform and Integrity Act of 2022 Listening Session on April 29. 5/10 UPDATE: Here is a transcript of prepared remarks from the USCIS speakers. Here is my recording of the event. Time index:

During the first five minutes of the listening session, USCIS Director Ur Jaddou provided opening remarks. My recording sadly does not include this intro, thanks to my apparent inability to read call-in instructions. From the portion I heard, it seems that Director Jaddou provided a “big picture” perspective of changes and improvements at USCIS, covering the points about agency-wide performance and goals that she made in her April 6 testimony to the House Committee on Appropriations (which is worth reading). She did not have significant EB-5-specific input (that I heard), but it was nice of her to be on the call. I applaud her goals and accomplishments so far at USCIS, and her seriousness about challenges.
My recording starts with the EB-5-specific portion of the call.
- New Investor Program Office Chief Alissa Emmel introduced herself and talked about the new law (minute 0-5), and processing times (5-9).
- A Policy Analyst with USCIS Office of Policy and Strategy discussed upcoming policy manual revisions and regulations. (minute 9-11)
- An Adjudication Officer with USCIS Service Center Operations confirmed that I-485 processing for regional center petitions has resumed. He incidentally dropped the revelation that “over 4,000” regional center I-485 were already pending before July 1, 2021. (minute 11-13)
- A Visa Policy Analyst with State Department Bureau of Consular Affairs Office of Visa Services Field Operations confirmed that RC-associated visa processing has resumed as of April 2022. (minute 13-16)
- From minute 16 of my recording, the call consists of stakeholders making comments and asking questions, and USCIS responding with thanks for the input (but not any answers).

The headline news is that new regional center I-526 cannot be filed starting with the new regional center program authorization on May 14, 2022. Instead, investor filings will need to wait until after USCIS designates individual regional centers under the new program; i.e. wait for new RC application forms to be not only filed but also approved. USCIS did not estimate a time for this process. (For reference, the previous RC application form, I-924, had a median processing time from 19 to 22 months between 2017 and 2021. The most I-924 approvals that USCIS ever managed in one month was about 40, back in 2018. Since 2019, the average was more like 15 per month. Based on new law requirements, the new RC application will have less offering-specific and project-specific content than I-924, but more compliance content and more security checks. The processing workload will depend on how many of the previously-designated 632 regional centers decide to apply for new designation. I guess that at least most of the 344 RC that were committed enough to file I-924A even during the RC program expiration will apply.)

A second headline, which I doubt that USCIS thought through: USCIS now claims no jurisdiction over the entities that were formerly designated as regional centers, and that are still handling billions of dollars of EB-5 investment. The written Q&A states that USCIS will no longer require these entities to file annual reports about what they are doing with those billions of dollars, or to file amendments when they change plans or ownership. Unless and until they choose to apply for new designation, the entities holding pre-enactment EB-5 investment are now apparently exempt from the new EB-5 integrity measures, and also from such oversight as USCIS used to provide for regional centers. This follows from USCIS’s interpretation that “regional centers previously designated under section 610 are no longer authorized,” and thus no longer have any status for USCIS to regulate. But I doubt this was intended. I understand the rationale to make regional centers demonstrate compliance with the new law before raising new investment (and to buy more time for USCIS to figure out how to implement the new law). I doubt USCIS thought about the negative integrity side effects of cancelling the only status that allowed USCIS to monitor or dictate to pre-existing regional centers. “USCIS abrogates oversight of entities currently deploying $27 billion dollars in immigrant investment.” This is a true and shocking headline, unless USCIS scrambles to make some clarifications on the status of formerly-designated regional centers.

The written Q&A and the listening session provide welcome clarity about grandfathering of regional center investor petitions. Regional Center I-526, I-485, and visa applications are already being processed as of April 2022. Pre-enactment I-526 are judged “according to the applicable eligibility requirements at the time such petitions were filed,” and with opportunity to demonstrate eligibility “despite the previously approved regional center associated with your petition no longer being designated.”

In the listening session, we heard for the first time from new IPO Chief Alissa Emmel, a career civil servant who was appointed to her position in September 2021 after having previously worked at IPO as an economist starting in 2013, and managing the IPO Compliance Division since 2017. On the call she sounded upbeat, relaxed, and unworried about the challenges of performance improvement or law implementation. She stated one firm plan for EB-5 law implementation: to publish a form and instructions for a new Form I-956, Application for Regional Center Designation, by May 14, 2022. If she has other implementation plans yet, she did not articulate them. No mention of a timeline for publishing the new project approval form or revising Form I-526 or I-829, no mention of processing time targets for regional center application adjudications, and no mention of plans for training adjudicators in the new law. If IPO has started tackling the major challenge of assessment metrics for new regional center compliance plans – a task that will presumably require coordination with the SEC and other outside experts – Chief Emmel didn’t mention it. I came to the call prepared with sympathy for the enormous burden that law implementation puts on USCIS, and for how harassed and panicky the USCIS staff would sound as they grappled with that burden, and with the intense time pressure. But I did not get a chance to deploy my sympathy. I couldn’t tell that much grappling has yet been undertaken or foreseen, or that much pressure has yet been felt.

The call included a Policy Analyst with USCIS Office of Policy and Strategy, who spoke to the need for new policy and regulations. She divulged one plan: “to hold another engagement in late May to gather individual feedback from impacted stakeholders on those areas or topics from the legislation that require rule-making or other sub-regulatory policy considerations.” And she expressed one specific “hope”: to roll out substantive policy manual revisions “over the next few months.” She also noted that “USCIS fully intends to follow appropriate rule-making procedures for implementing regulatory changes, which is by no means a quick process.” As background, the current EB-5 policy originated with a three-year process (with a policy memo drafted in 2011 and finalized in 2013), redeployment policy took three years (promised in 2014, draft released in 2015, published as policy in 2017), and the EB-5 Modernization regulation emerged over three years (promised in 2016, Notice of Proposed Rulemaking in 2017, Final Rule in 2019). With that background, to rewrite all EB-5 policy based on the RIA in a matter of months will be a herculean task. I would love USCIS to manage this; we badly need speed so that investor I-526 can be filed based on known guidance as soon as possible! But the Policy Analyst on Friday’s call did not sound stressed, as I’d expect she would be if herculean efforts were underway. She announced without audible shame what her office has done in 1.5 months so far: added a one-sentence “alert” to the Policy Manual (without deleting or revising the two other contradictory alerts), and archived one of the five Policy Manual chapters already made obsolete by the new law.

Regarding processing, Chief Emmel stated that “I want you to know that we are taking critical steps to reduce processing times for I-526s and I-829s, knowing that this goal will take some time to achieve for the reasons I’m about to discuss.” The steps cited were to resume regional center I-526 processing (“one of our predominant adjudication goals for our I-526 staff is to work through the large volume of I-526 petitions that were in process pre-sunset”), and to increase staffing levels (Emmel did not offer specifics, but I see that USAJobs.gov has listed two open positions at IPO). Chief Emmel expects that improved processing will take “time to achieve” because “it is important to note that in addition to adjudicating cases, IPO requires the time and subject-matter expertise of our adjudication staff to address other necessary efforts including implementation of the new legislation, litigation responses, FOIA requests, public inquiries, and others.” IPO processed over a 1,000 I-525 per month under Julia Harrison’s leadership, around 300 per month under Sarah Kendall, and 20 per month under Alissa Emmel in her first quarter at the helm. In Chief Emmel’s words on Friday, I heard positive intent to achieve incremental improvement over recent performance. I did not hear a plan for the exponential improvement that would be required to regain past performance levels or achieve new processing time targets in the foreseeable future. I listened closely for a sense of whether Chief Emmel intends to change the culture of IPO, which since 2019 has taken a time-is-no-object extreme-vetting approach to EB-5 adjudications, with gratuitously lengthy and hostile RFEs, high denial rates, and low completion rates. Chief Emmel spoke about the EB-5 program and investors in very positive terms, and she repeated the new service-oriented USCIS mission statement promising “fairness, integrity, and respect for all we serve.” She then went on to say that “for our office, what that means is to accurately and efficiently adjudicate petitions and applications, as well as safeguard the integrity of our nation’s immigration system through our efforts to combat fraud, protect national security and pubic safety, and maximize our law enforcement, intelligence community, and other federal agency partnerships.” Other than the word “efficiently,” those are still Stephen Miller/Sarah Kendall-era enforcement-centric talking points. I am still waiting for a changing tide in EB-5 adjudications, and to see efficiency, fairness, and respect treated as integrity issues by the Investor Program Office.

Filed under EB-5 Law & Policy, Updates from USCIS

FY2021 EB-5 visas issued by country, and analysis of constraints on visa issuance

April 21, 2022 6 Comments

Department of State has published the Report of the Visa Office 2021, including data for the number of EB-5 visas issued by country through consular processing and adjustment of status from October 2020 through September 2021. The following three tables summarize key data points for traditionally high-volume countries.

In normal years, visa statistics tell a story about EB-5 visa demand. In 2020 and 2021, they tell a story of processing constraints.

Fewer than 3,000 EB-5 visas were issued in FY2021, limited by neither supply nor demand. FY2021 started with 18,602 EB-5 visas available to be issued and 50,936 EB-5 applicants registered at NVC waiting for visas (including 45,749 from China). Available visas were not issued to available demand due to COVID-19, regional center program expiration, and long-standing processing problems.
Direct EB-5 visas accounted for a relatively high percent of the total visas issued in FY2021 – not due to a spike in direct EB-5 applicants, but because regional center program expiration halted regional center visa issuance for three months of FY2021.
A relatively high percentage of EB-5 visas in FY2021 were issued through Adjustment of Status — not because 31% of EB-5 demand is living in the U.S., but because COVID-19 shut down consular processing abroad more than I-485 processing in the U.S. (For the on-going pandemic impact on consular processing, see the NVC Immigrant Visa Backlog Report page.)
While a relatively high in terms of percentage, Adjustment of Status EB-5 visas were still a very low number in FY2021 – the lowest in five years. Generally, USCIS boasted of its efforts in FY2021 to ramp up I-485 processing volume to help compensate for consular closures and prevent visa loss. Data shows that employment-based I-485 completions increased across the board in FY2021 — except sadly not at the California Service Center, and not for EB-5 status adjustments. AOS visas between FY2020 and FY2021 increased 35% overall, but fell 21% for EB-5. See the base of the post for additional charts illustrating I-485 trends. The regional center program expiration must be partly to blame for abnormally low AOS EB-5 visa numbers last year. Trend charts also show I-485 processing issues that predate the regional center program expiration, and even the pandemic. If you have a pending or future I-485, consider these charts and what has to change.
Vietnamese received more than three times as many EB-5 visas as Indians in FY2021 – not because Vietnam had more applicants ready (it had fewer), but because the consulate in Ho Chi Minh City weathered the pandemic better than the consulate in Mumbai or the California Service Center. (See charts below for processing trends by post.)
Chinese received even fewer EB-5 visas in FY2021 than in FY2020. This cannot be blamed on China demand (which was higher than ever in FY2021) or supply (with over 15,000 visas left “unused”), or entirely on COVID-19 (the Guangzhou consulate processed more immigrant visas overall in FY2021 than in FY2020). Chinese applicants particularly suffered from the regional center program expiration putting a stop to regional center visa issuance from July 2021.

The May 2022 Visa Bulletin indicates that visas now “may” be allocated to regional center EB-5 applicants – thus eliminating one constraint from 2021. The next question is whether and when DOS and USCIS “can” issue visas, considering the many other factors delaying and limiting visa issuance besides RC program status. I made a number of additional charts of data that bear on this question, including I-485 processing trends, I-485 backlogs, consular processing trends, and appointment interview trends. The charts help to put EB-5 delays in a wider context, and highlight problems that need to be addressed.

I’ve thought about reopening my paid EB-5 timing service, to accommodate everyone who’s thinking “don’t make me look at charts, just tell me when I can expect a visa, given my specific situation.” The barrier is that the firm answers that people want aren’t possible. At best, I can offer personalized explanations of and reflections on contributing factors to wait times, such as described in this post. Email me at suzanne@lucidtext.com if you want a personalized (but still unfortunately complicated and qualified) guided tour. Note also my page of EB5 Timing resources.

Links to sources referenced in charts:

Visa issuance data from US State Department Report of the Visa Office. Adjustment of status equals the difference between Table V (Total) and Table VI (consular processing)
I-485 performance data for the California Service Center and I-485 pending data from I-485 reports on the Immigration & Citizenship Data page
US State Department Report of Immigrant Visas Issued by Issuing Office (All Categories): Fiscal Years 2012 – 2021
National Visa Center (NVC) Immigrant Visa Backlog Report
Annual Immigrant Visa Waiting List Report as of November 1, 2021
I haven’t had time to write about this yet (and waiting on the answers to a couple questions), but note also that IIUSA has nicely published the slides from its April 2022 conference presentation with Charles Oppenheim on What the Latest EB-5 Data is Telling Us. See also Lee Li’s article on per-country I-526 data in the latest Regional Center Business Journal.

Filed under EB-5 Statistics

4/29 USCIS Engagement!

April 19, 2022 2 Comments

Welcome to the first EB-5 stakeholder engagement since March 2020! (Only a listening session, but still a good sign!) I look forward to the updates with bated breath.

From: U.S. Citizenship and Immigration Services <uscis@public.govdelivery.com>
Sent: April 19, 2022 10:10 AM
Subject: USCIS EB5 Reform and Integrity Act of 2022 Listening Session

U.S. Citizenship and Immigration Services - Public Engagement Division

Filed under EB-5 Law & Policy, Updates from USCIS

May 2022 Visa Bulletin with Reserve Visas

April 13, 2022 15 Comments

The May 2022 Visa Bulletin is out, reflecting seismic changes for EB-5.

For discussion, I recommend Joseph Barnett and Bernard Wolfsdorf’s article EB-5 Visa Availability for the May 2022 Visa Bulletin and Reservations on Reserved Visas-Skipping the Waiting Line is Un-American.

The tragic situation described in my article on reserved visas is being realized.

Filed under EB-5 Law & Policy

DOS Alert on Visa Processing

April 12, 2022 36 Comments

Today April 12, 2022, the Department of State US Visas News page published “Announcement on Resumption of Processing of EB-5 Visas Associated with the Regional Center Program“:

On March 15, 2022, President Biden signed a law that made changes to the EB-5 program, authorized a new EB-5 Immigrant Investor Regional Center Program, and directed that certain “grandfathered” immigration benefits be processed. The Department has resumed processing visas associated with the Regional Center Program based on approved USCIS Forms I-526 (Immigrant Petition by Alien Entrepreneur), including those filed on or before the expiration of the previous regional center program on June 30, 2021. Further, pursuant to the new legislation, processing of visas associated with the new Regional Center Program may begin 60 days after enactment of the law.

Thank goodness for the push from well-drafted grandfathering language in the new law. Notice the two policies: one for Regional Center 1.0, and one for Regional Center 2.0. The Department “has resumed” processing visas based on approved I-526 based on previous regional center program authorization. For I-526 based on the “new Regional Center Program,” DOS “may begin” processing after 60 days.

Commenters, let me know if you can access your NVC accounts, or have any other evidence that the Department has actually resumed processing for pending applicants.

Filed under Updates from USCIS

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EB-5 Updates

EB-5 roller coaster continues (RC status after December 29, processing, FY2023 visas, EAGLE Act and country caps)

Regional Center Status after December 29

RIA Compliance Resources

Processing and Timing Questions

FY2023 Visa Availability

EAGLE Act and Country Caps

10/19 EB-5 Stakeholder Meeting (call recording, I-956 and I-956G for pre-existing RCs, termination risk, sustainment)

Incomplete EB-5 policy update

I-526, I-829, and I-485 Processing (FY2022 Q3 report and leaked data)

Facing FY2023, Suggested Articles, October 2022 Visa Bulletin

Genuine EB-5 Engagement Promised

Factors and Trends Underlying I-526 Processing Times

RIA Implementation Update (website, forms, litigation, processing)

New Form I-526E and Revised FAQ

Behring injunction shifts compliance risks

I-526 Processing Update (May 2022)

Regional Center reporting and NCE approval forms released

Comments on the new Form I-956 Application for Regional Center

5/25 USCIS EB-5 Feedback Invite

To Register:

USCIS Processing Times Webpage Redesign

4/29 USCIS Q&A and Listening Session Report

FY2021 EB-5 visas issued by country, and analysis of constraints on visa issuance

4/29 USCIS Engagement!

May 2022 Visa Bulletin with Reserve Visas

DOS Alert on Visa Processing

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