EB-5 news (USCIS public input request, reauthorization, RFE response and litigation, NVC update, PT report update)
April 19, 2021 24 Comments
Request for Public Input
Today DHS published Request for Public Input: Identifying Barriers Across USCIS Benefits and Services. This request aims “to better understand and identify administrative barriers and burdens (including paperwork requirements, waiting time, and other obstacles) that impair the functions of the USCIS process and unnecessarily impede access to USCIS immigration benefits.” Thank you Secretary Mayorkas! Yes, we have input for you.
Click on the above link for instructions for how to submit effective comments. Note that the comment due date – originally written in error as today – has been updated to May 19, 2021. If anyone would like to hire me for EB-5-specific comment writing service, I am available and bring a successful track record. The Final Rules on the EB-5 Modernization Regulation and the 2019 USCIS Fee Rule both quote extensively from comments that I submitted on the proposed rules. My strategy is to be rigorous and draw on my massive repository of data and citations.
Reauthorization
The best news I have on the push for regional center program authorization is that EB-5 giant Robert Divine has published an article in EB5 Investors Magazine: “The problem with EB-5’s reliance on temporary legislation.” In just 600 unminced words, Mr. Divine explains the reauthorization situation and what’s at stake for investors, industry, and the country. If I were writing to my representative to press for reauthorization, I would attach Mr. Divine’s article as clear, honest, and authoritative background reference. If I shared anything on social media, I’d share this article as a call to action. And I’d like to give a standing ovation to this conclusion from the article:
Congress should at least provide that the regional center legislation in effect at the time an investor files Form I-526 will remain in place throughout those waits until the investor can remove conditions on permanent residence through adjudication of Form I-829. The United States is a country of laws designed to protect reasonable expectations. This nation should not be encouraging people to invest to create jobs for us without protecting the reasonable expectations of investors who take the risk of such investment.
I continue to update my Reauthorization page as I hear of news and resources. Most recently, I noted that the text of S.831 has finally been published at Congress.gov.
RFEs and Litigation
The April 2021 edition of EB5 Investors Magazine is generally rich in helpful articles. I particularly note my article, and multiple articles on recent trends in EB-5 litigation.
- Strategies for I-526 RFE business plan updates by Suzanne Lazicki (This article gives a practical and strategic approach to RFE response based on extensive experience)
- EB-5 litigation: The new norm for EB-5 investors By Bernard Wolfsdorf
- What is a mandamus lawsuit and how can it help EB-5 investors? By Matthew Galati
- Cash is cash – USCIS’ controversial EB-5 policy By Dillon Colucci
- EB-5 consular processing delays lead to lawsuits by EB5 Investors Magazine staff
Consular Processing and Visa Updates
The Visa News page on the Department of State website includes several significant updates.
- Apr 6, 2021 Visa Services Operating Status Update This post confirms that as of April 2021, EB-5 is still not a priority for interview scheduling. “Posts that process immigrant visa applications are prioritizing Immediate Relative family members of U.S. citizens, including intercountry adoptions, fiancé(e)s of U.S. citizens, and certain Special Immigrant Visa applications.”
- Apr 9, 2021 National Visa Center Meeting with AILA on February 17,2021 This meeting transcript from February is full of interesting information. Including:
- “During CY 2020, the median time for an approved I-526 petition to reach NVC from USCIS was 126 days…. NVC does not have a way to proactively search USCIS systems for approved I-526 petitions that have not been electronically transferred to NVC.” (DOS here quantifies the problem of delays by USCIS in forwarding I-526 approvals to NVC, and suggests there’s not much DOS can do about the problem.)
- “As of January 25, 2021, NVC’s queue of documentarily complete employment-based or family-sponsored cases (including family preference and immediate relative cases), with a visa number available, waiting for an immigrant visa interview is: Family-Sponsored: 312,782 cases; Employment: 11,504 cases; EB-5: 3,930 cases.” (That huge family-based number is alarming, because family cases are getting priority over employment cases as noted above. The EB-5 number is interesting, because it tells us how many consular cases are ready to go based on how far the visa bulletin has already moved. The total number of EB-5 cases registered on the immigrant waiting list at NVC, which includes those without visas available yet per the visa bulletin, is much higher of course.)
The May 2021 visa bulletin has announced another “Chats with Charlie” to take place on April 22, 2021 at 1:00 p.m. EST at https://www.youtube.com/user/TravelGov Questions can be emailed to VisaBulletin@state.gov ahead of the event with “Chat with Charlie Question” in the subject line. The previous visa bulletin live chat from March 17 was incredibly helpful and informative, and I’m looking forward to the April iteration.
Processing Time Report Update
The USCIS website has long had a page titled “Historical Average Processing Times” that I used to ignore because it reported a meaningless and misleading data point. Instead of reporting the average time petitions took to process, this “processing times” page used to report “average age of all petitions currently pending.” Average inventory age combines processed and unprocessed petitions, naturally falls with an influx of new receipts, and does not directly reflect on processing times at all. This misleading page was probably heavily referenced by people filing Mandamus complaints, because average inventory age is often less than processing times. And now, USCIS has finally gotten around to fixing the page.
Since March 31, 2021, the Historical Average page is now titled “Historical National Median Processing Time (in Months) for All USCIS Offices for Select Forms By Fiscal Year,” and uses a revised method. Instead of reporting average inventory age, the page now reports median age specifically of processed forms, consistent with the method used for the Case Processing Times page. “Processing times are defined as the number of months it took for an application, petition, or request to be processed from receipt to completion in a given time period. …The number of months presented is the median. It represents the time it took to complete 50% of the cases in a given time period.” This page provides median times across a full year, which are interesting when compared with median times reported monthly for those same years (as recorded in my on-going log). For example, the Historical Average page now reports a median I-526 processing time of 19 months across FY2019 adjudications, while monthly I-526 processing time reports from October 2018 to September 2019 indicated median times ranging from 20 to 27.5 months – never as low as 19 months. Hmmmmm….. After all, the revised Historical Average page continues to provide ammunition for Mandamus lawyers seeking to show that the monthly USCIS processing times reports are misleading. The annual averages also starkly illustrate that the I-526 visa availability approach, instituted in 2020, did not bring down the average age of adjudicated cases as intended by USCIS.
Historical National Median Processing Time (in Months) for All USCIS Offices for Select Forms By Fiscal Year: Fiscal Year 2017 to 2021 (up to March 31, 2021)
Form | FY 2017 | FY 2018 | FY 2019 | FY 2020 | FY2021 to March 31 |
I-526 | 16.6 | 17.9 | 19 | 31.2 | 31.2 |
I-829 | 18.2 | 21.8 | 25.9 | 24.8 | 33.7 |
I-924 | 19.5 | 19 | 18.8 | 19.1 | 34.8 |
I-485 (all employment-based) | 7 | 10.6 | 10 | 8.8 | 11.5 |
Sharing I-526 Experience
The most compelling processing time evidence comes from individual experience. I appreciate EB-5 investors who share their experience and case status analysis in blog post comments. And I appreciate the suggestion for a single static place to collect these reports for common reference. I’ve made failed attempts at this in the past (including starting a forum that I didn’t have time to moderate, and setting up a Google form whose link no one can ever find). But I will continue to think how I can best facilitate info sharing. FYI, from my various information sources, November 2018 continues to be the filing date I most commonly see on I-526 decisions.