EB-5 Updates

Analyzing potential changes to EB-5 visa availability

February 22, 2021 8 Comments

Last week, President Biden sent his immigration bill to Congress. The proposed U.S. Citizenship Act serves to open negotiations on immigration reform. Apparently no one thinks this bill will pass as-is, but it signals the administration’s priorities and presents a large collection of reform ideas that might go somewhere individually, if not together. While I wait for more lawyers to comment on the legislation, I read it myself and tried to think about EB-5 implications. I get the impression that the drafters have these priorities in this order: DACA, the southern border, family-based immigration, employment-based immigration for tech and health care workers, and a few thoughts for asylum seekers, refugees, students, and farm-workers. The bill hardly notes the existence of EB-5 immigrant investment (and doesn’t mention regional center program authorization). It does include provisions that would reshuffle visa numbers and visa availability, with positive and negative implications for EB-5 wait times. To assist in thinking about these legislative proposals, I’ve done two things.

I made a table that lists out in one column all the ideas I’ve heard of for statutory or administrative changes that could change EB-5 visa wait times. Then I searched the U.S. Citizenship Act for those provisions, and on finding them noted the detail and page number. This table helps to give an overview of what could conceivably change, and which specific changes the Administration is actively promoting now. See the base of this post.
I made an Excel sheet designed to help model the wait time impact of various possible legislative changes. (Link to download the file.) The model starts with the most recent Charles Oppenheim wait time analysis, which addresses the wait time outlook under status quo conditions for an EB-5 investor with a priority date of October 1, 2020. I took that analysis and broke it into component parts, which then facilitates switching out the values for various components and seeing what happens to the calculated wait time. The model shows that the single change with most EB-5 wait time relief for all countries and all priority dates would be to recognize that only EB-5 investors, not family members, get counted against the EB-5 visa quota. All EB-5 investors should unite to advocate for that change. (I can’t positively identify this provision in the U.S. Citizenship Act, but hear it is there.) The bill’s proposed increase to the EB visa limit combined with decreased EB-5 share of the EB limit would have net zero EB-5 effect together, but could be very good or very bad if pursued separately. Removing the country caps on EB visas would reorganize the backlog without shortening it, meaning decreased wait times for some and increased times for others. Recaptured past EB visas would probably be cold comfort for EB-5, considering that EB-5 has only one year to try to get a share, and constrained by limited consulate and USCIS capacity to actually issue extra visas. My Excel model has limitations: it can only visualize the situation for a single priority date, and the backlog detail for that one date is limited to what Charles Oppenheim shared last November. But I think the model is still useful to model differences, and to help visualize how much or little wait time impact various changes could have.

Ideas for how to change EB-5 visa availability and wait times	Proposal included in the U.S. Citizenship Act	Page
Change the total employment-based (EB) visa allocation	Increases annual Employment-Based visa limit to 170,000 [currently it’s 140,000]	177
Change EB-5’s share of the EB visa limit	Decreases EB-5’s share of the annual EB visa limit to 5.85% [currently it’s 7.1%]	222
Recapture unused visas from previous years	Adds unused EB visa numbers from 1992-2020 to a fiscal year’s annual EB visa level [This would be over 100,000 visas, but I guess wouldn’t help EB-5 much since EB-5 would have only one year to try to claim them, and consulate/USCIS capacity is limited.]	177
Change who is subject to numerical limitations	Provides that beneficiaries of approved immigrant petitions with a priority date over 10 years before are no longer subject to numerical limits [Appears that this would cap EB-5 wait times at 10 years.]	220-221
Change the order of visa issuance	Eliminates the country cap on EB visas [This would shorten wait times for some and lengthen it for others by making visa issuance simply first-come-first-serve for everyone]	220
Change priority date retention options	Allows retaining priority date of earliest petition filed that was approvable when it was filed, regardless of the category of subsequent petitions [This is better than the PD protection currently available to EB-5 under the regulations]	203
Eliminate factors that deplete EB-5 visa availability	Eliminates Chinese Student Protection Act offset [But this moot, since the offset had already been satisfied as of 2020]	222
Count principals only, not family members, against the annual visa limits	I hear this is in the bill but didn’t find it myself. Is it in the reference to “(I) Noncitizens described in section 203(d)” being exempt from direct numerical limitation? [This issue has also been pursued via litigation.]	220?
Change how EB-5 shares in unused visas from previous years, and prevent EB-5 from permanently losing unused EB-5 numbers	I didn’t find this in the bill
Change the number of EB-5 visas available to pending applicants by creating new set-aside categories for incoming applicants	I didn’t find this in the bill [new set-asides would lengthen wait times for pending applicants]
Create a new non-immigrant visa category for people with approved I-526 to enter the U.S. on non-immigrant status while EB-5 petitions are pending	I didn’t find this in the bill
Permit concurrent filing of I-526 and I-485	I didn’t find this in the bill
Always permit filing I-485 based on Chart B	I didn’t find this in the bill
Grant parole and employment authorization for anyone with approved I-526	I didn’t find this in the bill
Reallocate visas from other categories (such as Diversity Visa lottery) to EB-5	I didn’t find this in the bill
Provide more protection for children against age-out	I didn’t find this in the bill for EB categories
Improve capacity and procedures at USCIS and consulates so that available visas actually get issued	I didn’t find this in the bill

Filed under EB-5 Law & Policy

Preparing for the Regional Center deadline June 30, 2021

February 4, 2021 19 Comments

2/17/2021 Update: Please visit my new Reauthorization Page, which collects resources and information for the advocacy effort.

The EB-5 regional center program is currently authorized through June 30, 2021. Reauthorization happened almost by default in recent years but cannot happen by default this year, since unexpectedly separated from the appropriations process. Reauthorization will require extraordinary action by industry (in education and advocacy) and Congress (in managing to act on EB-5 legislation).

If the regional center program permanently loses authorization, then the U.S. economy will lose a major engine for economic development and job creation, and all past regional center investors plus family who do not yet have conditional permanent residence (over 80,000 people) risk losing the chance for EB-5 visas, even as their funds were already taken and spent in the U.S. economy. Congress and the public are not well educated in either of these consequences. There is urgent work to do.

IIUSA has hosted a helpful webinar and published articles that addressed many of my EB-5 advocacy questions from last month. If you have a stake in the regional center program and questions about what’s going on with reauthorization and what you can do before June 2021, review this information:

“State of the EB-5 Industry and Its Path Forward” IIUSA Blog (January 20, 2021)
“Will the EB5 Investor Immigration Program Survive Beyond June 2021” Forbes and IIUSA Blog (February 2, 2021).
IIUSA Q1 2021 Government Affairs and Association Update Webinar Recording (February 3, 2021). Note that this webinar goes into detail on the practical consequences of an authorization lapse or permanent loss of authorization.

According to IIUSA, the likely only path to reauthorization is a forthcoming “EB5 Reform and Integrity Act” to be introduced by Senator Grassley and Senator Leahy. Apparently we have a tiny window before this introduction to suggest “technical changes” to the language that a few people negotiated in secret last year. (With the secrecy being at Grassley/Leahy staff request, IIUSA leadership says.) Here is the language of the EB-5 Reform and Integrity Act disclosed last December, and a section by section summary of the bill. If you have a constructive suggestion for change to that language, be quick to make it known. (I assume it’s too late to address the overall weakness: that the bill targets the regional center program of 2015/2016, not the entirely different landscape that exists today. But the bill could be worse, and some detail fixes might make it more workable.)

I believe the message that supporting Grassley/Leahy’s ill-informed but at least motivated effort for “EB-5 reform” is simply the only option to get to regional center program authorization within the next few months. Back when billions of dollars were at stake in on-going/future raises, more people got involved with competing advocacy. Those motivating new dollars aren’t there anymore, in the post-regulations and post-retrogression landscape. Now lingering advocacy has to be mainly motivated by good faith — including good faith with past investors whose funds were already spent but who don’t have visas yet. It’s hard for me to imagine the old New York EB-5 advocacy faction hustling now just for the sake of good faith. And even if they did, it would be solitarily behind closed doors, judging by history, and not a factor in community efforts to make reauthorization happen. Once Grassley and Leahy introduce their EB-5 reform bill, I will support it as the only choice for the near-term reauthorization objective. If I become aware of any other choices, I will report on them. In the meantime, I have added my name to a new advocacy group that IIUSA has created: Coalition to Save and Create Jobs. Take a look at the site, and consider signing up. It’s a good concept, and anyone can join for free. (Paying to join IIUSA is also an option of course.) I will be delighted if this coalition succeeds in informing and organizing stakeholders for positive action. Time to compensate for the sad failures in association-building, education, and advocacy that lead us to today’s challenges.

I foresee a lot of volunteer labor in the coming weeks. (For the dire state of current Congressional education about EB-5, see this 2021 Congressional Research Service report. ) I am currently working on a white paper designed to highlight an overlooked talking point: the past responsibility implicated in regional center program authorization. Most people in Congress, including Senator Grassley, have not understood that EB-5 investments do not in fact “buy” green cards, and thus have not in fact resulted in visas yet for tens of thousands of people whose money was already invested and spent long ago, but who are still in-process immigration-wise and dependent on regional center program authorization to prove job creation. Surely Congress wants to avoid finding itself guilty of a fraud scheme that dangled possible visas as bait to invest in U.S. businesses and create U.S. jobs, only to — after successfully attracting billions of dollars and helping U.S. project finance and job creation through a recession – change the law to prevent the visa incentive from ever being granted. I will do my best to shine a light on that pitfall, to help Congress avoid it.

It’s also important to highlight the positive: what EB-5 has done and can do for future economic development and job creation. A dozen flashy old scandals still dominate EB-5 news and the program’s image – the boring reality about the majority of EB-5 projects is not told, and must be told. EB5 Investors Magazine started work last year on an EB5 Projects page, and I look forward to additional efforts in this vein.

Filed under EB-5 Law & Policy

FY2020 Q4 EB-5 Form Data, Mayorkas Nomination, Backlog for China 2015

January 27, 2021 29 Comments

FY2020 Q4 EB-5 Form Data

The USCIS Citizenship & Immigration Data page has posted data reports for FY2020 Q4 (July to September 2020). Data for Forms I-526, I-829, and I-924 can be found in All USCIS Application and Petition Form Types (Fiscal Year 2020, 4th Quarter, Jul. 1-Sep 30, 2020) (PDF, 129.47 KB)

EB-5 Form Data for FY2020 Q4 (July to September 2020)

Form	Received	Approved	Denied	Pending
I-526	53	904	236	15,063
I-829	740	732	62	10,304
I-924	D*	45	45	163

*Redacted in the report, but must be 129 since there were 124 I-924 pending at the end of Q3

The numbers are basically consistent with the previous quarter’s report, and with my expectations. I-526 and I-829 productivity improved again – by a hair. I-526 receipts remained low, as has been the case since the perfect storm of investment amount increase, lengthy wait times, economic upset, and COVID-19. Denial rates were lower than last quarter, though still higher than average. As usual, I’ve assembled charts below that put the numbers in historical context.

Mayorkas Nomination

The best news for future processing productivity and processing times is that Mr. Alejandro Mayorkas may be about to be approved as Secretary of Homeland Security. His nomination was advanced out of committee yesterday. When Mr. Mayorkas was director at USCIS (2009-2013), one of his goals was to build greater expertise, professionalism, and transparency into administration of the EB-5 program, and he pursued that goal with energy. Faced with problems in adjudication from lack of expertise in business and economics, he arranged for the EB-5 team to hire staff at a higher grade who would bring such expertise. Noting need for more coordination with other government agencies, including SEC and FBI for enforcement, he arranged to relocate the entire EB-5 team from California to Washington DC, creating the Investor Program Office. Noting the problem of undefined and untransparent requirements, he pushed publication of the first major EB-5 Policy Memo in 2013. Learning about the issue of inconsistent adjudications, he created a Discretion Review Board. EB-5 stakeholder engagements were quarterly under his watch, and he frequently participated personally to hear about stakeholder concerns. When members of Congress contacted USCIS about constituent problems with adjudication, Mr. Mayorkas paid attention to the inquiries and frequently got personally involved in addressing the inquiries, overruling and chiding adjudicators if necessary. All this wonderful and officious activity earned Mr. Mayorkas a large target on his back, and the Inspector General eventually wrote a report about three of the hundreds of cases in which he interfered – a report that we’ll never hear the end of, and which concluded that he was guilty of creating an appearance of favoritism. (I wrote about this in 2015.) But for those of us who want the EB-5 program to be administered with expertise, professionalism, and transparency, having Mr. Mayorkas at the top at DHS is great news. Just listen to these beautiful words from his nomination hearing on January 19, when he was explaining his approach to leadership at USCIS: “USCIS is an agency that adjudicates cases. That’s what it does. When I had authority and responsibility to fix problems, I fixed problems in the cases the agency handled. It is my job to become involved, to learn the problems that an agency confronts, to become involved in those problems, and to fix them, and that’s what I did.”

Not that Mr. Mayorkas will have much time for EB-5 specifically (indeed, EB-5 administration slipped somewhat back when he moved on from USCIS to become deputy DHS secretary). But at least he should set a positive tone from the top. Those plummeting downward lines that we see in the EB-5 adjudications chart above will eventually trend sharply upward again, I hope. I almost wish that Sarah Kendall were still in charge at IPO, so that in fairness she could have a chance to perform under leadership that instructed her to value efficiency, transparency, and order. I heavily criticized her tenure for decimating productivity at IPO and destroying stakeholder trust, but I believe that she may have been simply and competently pursuing the objectives she was instructed to accomplish.

(As a side note, thank you to everyone who contributed to my Ombudsman survey form! I summarized and submitted your input to IIUSA to bring to the attention of the CIS Ombudsman. I hope that these concerns will make it to an open ear in USCIS leadership.)

China 2015 Backlog and Visa Bulletin Movement

And finally, a note for Chinese EB-5 investors who filed I-526 in 2015 and still waiting for visas. I have a lengthy post or article coming for you eventually, but keep modifying my analysis because it’s all so complicated! But note that this new report which has some significant information for you: Form I-140, I-360, I-526 Approved EB Petitions Awaiting Visa Final Priority Dates (Fiscal Year 2020, Quarters 3 and 4) (PDF, 108.43 KB)

The report format is tough to interpret (I previously tried to explain it with pictures here.) In short, the report gives (A) a number of Chinese applicants who have approved I-526 but CANNOT move forward to final action based on the Visa Bulletin. That is not very helpful, because what we really want to know is (B) how many Chinese have approved I-526 plus CAN move forward to final action based on the Visa Bulletin.

I want to know (B), because that is a clue about when the visa bulletin will move again. If (B) is a small number, then the visa bulletin will need to move again soon to allow more people to join the group at the finish line, ready for final action. If (B) is a large number, greater than the number of visas available in the near-term, then final-stage applicants already exceed supply and the visa bulletin will not need to move again for awhile.

It occurred to me that the USCIS report is indirectly helpful, because (in the special case of China in 2020) we can infer (B) from the change over time in (A). Specifically, by the difference in numbers reported in the April 2020 and November 2020 reports.

The number of Chinese applicants who have approved I-526 but CANNOT move forward to final action (A) is increased over time by number of I-526 approvals, and decreased the number who CAN move to final action thanks to visa bulletin movement. The number of Chinese who have approved I-526 plus CAN move forward to final action based on the Visa Bulletin (B) is increased over time by applicants released by the visa bulletin, and decreased over time by applicants receiving visas. However, for China, half of those variables are near zero. There should be few-to-no incoming I-526 approvals since April 2020, because the I-526 visa availability approach that took effect in April 2020 limits adjudication of I-526 without visas available. Thus I think we can discount additions to (A) for China in 2020, and only look at subtractions. The consulate in Guangzhou has issued 0 EB-5 visas since March 2020, so I think we can almost discount subtractions from (B) and mainly look at additions. (The only Chinese visa completions since March 2020 have been from adjustment of status, and that number is low. Chinese apparently received only 489 visas through AOS in FY2020.)

Therefore, I conclude that the difference between the reported numbers of approved I-526 awaiting visa availability in April 2020 and in November 2020 about equals the number of principal applicants who were released to the visa stage by Visa Bulletin movement since April 2020, and still waiting there, with their families, for visas. Referring to the above tables: 23,511-21,253=2,258 approved I-526 (i.e. principal visa applicants). 2,258 principal applicants means about 6,136 total visa applicants. (Considering that for Chinese visas issued in FY2018, principals accounted for 36.8% of total applicants.) So I think we can conclude that there are at least over 6,000 Chinese applicants queued up for final action based on the current Visa Bulletin Final Action Date of August 15, 2015. As of November 2020, Charles Oppenheim was estimating that it might be practically possible to issue about 3,000 visas to China in FY2021. I’m guessing that picture isn’t any better today considering that the consulate in China still has no timeline for resuming EB-5 visa interviews, and USCIS remains slow. If there are already 6,000+ people queued up for only around 3,000 spaces, then that’s already a big crowd at the visa final action stage. The visa bulletin won’t need to move any time soon to increase the size of that crowd. Thus I doubt the Visa Bulletin Chart A date will move for China in FY2021 at all, unless a miracle makes the consulates/USCIS able to work double time and actually issue the over 10,000 visas theoretically available to China this year under the unusually high FY2021 EB-5 visa quota. As I said, though, this is all very complicated. I may well revise or refine this analysis in the future as I receive more information or corrections. And please share your insights!

(Note that I don’t attempt to interpret the Vietnam EB-5 numbers on this report, because there’s no way to guess how the Vietnam number was affected by incoming I-526 approvals vs. exits to the visa final action stage.)

Filed under EB-5 Statistics

Ombudsman Meeting Input

January 13, 2021 5 Comments

2/2 Ombudsman Meeting

IIUSA has announced that its staff have been invited to a virtual meeting on February 2 with representatives from the Office of the Citizenship & Immigration Services (CIS) Ombudsman.

Ombudsman’s Office meets with stakeholder communities to hear about their concerns and identify issues with USCIS programs and processing. The Ombudsman then uses this input to make recommendations to USCIS to fix systemic problems and improve the quality of their services.

In preparation for this meeting, IIUSA is collecting comments and feedback on areas of concern that industry would like to be addressed at the upcoming meeting. You can send your comments to info@iiusa.org no later than Wednesday, January 20. (Note that the CIS Ombudsman deals with USCIS specifically, not with consulates/Department of State and not with legislation.)

I am still thinking about my comments and questions, and invite you to help me. The CIS Ombudsman is most likely to note and act on problems that are systemic and widespread. So the strongest comments will be able to reference the specific experience of multiple witness. I made a Google Form designed to collect such experience, and I invite you to fill out the form with your input on processing issues encountered for I-526, I-485, I-829, etc.. This will save me the time of sorting through old blog comments to collect details from reader experience, and will help to shape and inform my thinking. (And of course, you can respond directly to IIUSA as well.) [Note: the form is now closed. Thank you to the 40 readers who submitted input. I summarized and used detail from your comments to craft the suggested questions I sent to IIUSA.]

Other Updates

Recent announcements on the USCIS News page may be relevant for some readers:

USCIS to Replace Sticker That Extends Validity of Green Cards (January 12, 2021)

USCIS Lockbox Updates (January 08, 2021) regarding delays in issuing receipt notices

USCIS Extends Flexibility for Responding to Agency Requests (December 18, 2020)

Filed under EB-5 Resources

New EB-5 Q&A from USCIS

January 11, 2021 8 Comments

In my post Report on Nov 2020 IPO Non-Engagement, I pointed out that the November 11 EB-5 engagement presentation avoided addressing industry questions. I now see that on December 16, USCIS took a step to compensate by publishing EB-5 General Questions and Answers (updated Dec. 2020) on the EB-5 Resources page. This 7-page PDF selects a portion of questions asked (e.g. from IIUSA’s list), doesn’t necessarily answer them, and was published with no announcement in a place where even I took a month to notice it. But nevertheless, it’s seven pages of something like communication with the industry, and we rarely get even that much, so thank you USCIS. I appreciate this step!

Visit the USCIS website to review the full Q&A, which is indeed worth reading. The following is my biased summary of the Q&A content.

I-526

1. An I-526 expedite approval merely expedites assignment of the I-526, not adjudication time. USCIS cannot provide specific processing times for adjudication of an “expedited” I-526.

2. The Q&A tries to justify the practice of requesting I-829 evidence in the context of I-526 adjudication.

3. IPO assesses visa availability monthly.

4. I-526 workflows are adjusted monthly based on visa availability.

5. USCIS does not have or plan to develop technology that would allow I-526 petitioners to incorporate project-related documents submitted with a pending or approved I-924 (I-526 exemplar) rather than submit duplicative documents with each I-526. USCIS is “open to exploring ways to achieve efficiencies within our existing systems” but lacks budget to improve the systems. [Who did not use the fee rule process to request needed budget, I wonder.]

I-829

6. Read the Q&A for a detailed answer to this question: “What steps should a petitioner take to add an eligible derivative to a Form I-829?”

7. After denying an I-829 petition, USCIS will generally wait until after the initial motion period to issue a NTA with immigration court, but reserves the option to refer cases to ICE earlier.

8. Fraudulent activity in a project has a bearing on I-829 adjudication if it prevents satisfying all investment, sustainment, and job creation requirements for removing conditions.

9. I-829 receipt notices issued in July 2020 were not intended to extend CPR status, just to replace possibly missing notices.

Regional Centers

10. There is no timeframe for posting regional center termination letters since 2018, which are still “in the queue to be reviewed by USCIS FOIA specialists.” [So much for transparency. The entire unredacted immigration record for Kamala Harris’ mother was posted by FOIA within a month of Harris’ nomination, but it takes two years and counting to review regional center termination letters—a type of record previously cleared for routine release, and obviously serving an integrity purpose.]

11. “We will consider your request, but USCIS does not currently have plans to proactively publish regional center designation letters.”

12. USCIS imposes a duty for RCs to monitor and oversee investment activities, but declines to specify what this duty entails because “it is not possible to do a one-size-fits-all checklist.” [But such checklists must exist behind the scenes, unless USCIS is simply arbitrary and capricious in regional center terminations. Assuming that there’s some method and consistency to USCIS oversight, then USCIS must have some specific and defined criteria for what Regional Center monitoring, oversight, and activity look like in practice. And given that, why not come out and tell Regional Centers the criteria by which they will be judged?]

13. The Q&A takes the industry question “When will anxious stakeholders learn more about the results of the submitted comments on the policy manual update on redeployment?” and answers that there’s no timeline to advance the universally ignored Advance Notice of Proposed Rulemaking from 2017 on the regional center designation process. We see you dodging the question, USCIS.

14. Since January 5, 2021, the newest Form I-924A version (dated 11/21/2019) must be used.

15. The Q&A states that in fact “there is no requirement that an approved regional center must have affiliated I-526s filed within a three-year period or lose designation.” [This contradicts the evidence of regional center termination letters that such a metric was applied in practice at least through 2018. But good to hear this statement, since the 3-year metric was particularly unfair and harmful for regional centers in distressed and rural areas.] The Q&A also clarifies that I-924 regional center processing times are not actually 5-8 years, though the USCIS Processing Times Page reported them as such until recently due to what’s now acknowledged as a reporting error.

16. Regarding interfiling of project status updates, the Q&A gives this helpful information: “Updates and other correspondence are received in our mail room. We keep the envelope or shipping label, we stamp the date we received the correspondence, and we insert the documents into their corresponding file(s). We randomly sample the work to ensure the documents were properly interfiled.”

Filed under Updates from USCIS

2/3 Government Affairs Webinar Invitation

January 7, 2021 3 Comments

IIUSA invites the public to join a free Government Affairs and Association Update on February 3, 2021. Promised topics include legislative updates, Grassley/Leahy integrity reform discussion, IIUSA USCIS Ombudsman Meeting recap, ongoing FOIA litigation, and how you can be an advocate. You can register here, and are invited to email questions in advance to info@iiusa.org. Thank you IIUSA! Take advantage of this opportunity, and convey your questions. My sacrifice before the camera this week was not in vain, I like to think, if it helped encourage this very welcome engagement. Those wondering about potential post-election changes may also appreciate Episode 18 of the KlaskoLaw podcast “2020 Post-Election Immigration Breakdown.”

As a reminder of where we’ve been, here’s the most recent update to my history of regional center program authorizations. The regional center program was established in 1992 and typically extended for several years at a time, until 2015. Since then, it’s been a bumpy ride thanks to the chaotic appropriations process, with funding bills and continuing resolutions extending government funding (and incidentally, associated immigration program authorizations) for a few months at a time. Now a new regional center program sunset date of June 30, 2021 separates the regional center program from the appropriations drama, and creates the challenge and opportunity of dealing individually with EB-5.

What would happen if Congress did not reauthorize the regional center program in time? The last time we seriously asked this question was back in 2012, when we were coming off a three-year authorization and depending on Congress for another long-term reauthorization. At a January 2012 stakeholder meeting, I noted this exchange: “A stakeholder asked what procedures might be employed in the event that Congress does not extend the EB-5 Regional Center program past its current sunset date of 09/30/2012. Rachel Ellis responded that this as a question that will just have to be addressed when and if it occurs, and that the Service does not have a response at this time.” After the May 1, 2012 stakeholder engagement, USCIS published a Q&A with a similarly vague answer to a question about how a regional center sunset might affect current and future applications and projects. “If Congress does not reauthorize the Immigrant Investor Pilot Program, all existing regional center designations will expire automatically. Following the sunset of the Immigrant Investor Pilot Program, USCIS will no longer possess authority to approve a regional center designation. USCIS will continue to monitor Congressional actions pertaining to the EB-5 Immigrant Investor program, and will keep stakeholders informed as new information becomes available.” I think the bottom line is that there’s no developed policy for a sunset because it’s just not possible to contemplate that a multi-billion dollar program would get abruptly terminated mid-stride with those billions of dollars and over 80,000 pre-CPR investors in the balance. Certainly regional centers and their lobbyists are motivated to do what it takes to avoid that eventuality, and politicians who like jobs and investment should be too. I could imagine a temporary lapse in authorization thanks to Congressional inefficiency, which would presumably play out like the temporary authorization lapses we’ve seen in connection with government shutdowns. Scroll to the bottom of my Washington Updates page to see further discussion. The regional center program strongly needs the stability of long-term if not permanent authorization, and has proven its value for economic development and job creation. I look forward to seeing long-term authorization accomplished this year.

I’m reminded of this EB-5 Legislation? post I wrote just over a year ago, reviewing what happened with EB-5 legislation between 2015 and 2019. The dynamics described in that post are still presumably at play as we look at a renewed legislative effort in 2021. But now a near-term deadline gives extra pressure and encouragement to actually cross the finish line.

Filed under EB-5 Events

EB-5 Outlook 2021: questions about legislation and reauthorization

January 4, 2021 9 Comments

2/17/2021 Update: Please visit my new Reauthorization Page, which collects resources that answer many of my questions below.

— Original Post —

On Wednesday January 6 at 2 pm EST, Carolyn Lee is hosting an EB-5 Outlook 2021 Webinar (register here) with guests Bill Gresser, Adam Greene, and me. Carolyn is Legislative Counsel to IIUSA, a 4-term Chair of the American Immigration Lawyers national EB-5 Committee, and industry godmother. Bill is Vice-Chair of IIUSA’s Board of Directors, and both Bill and Adam are former chairs of IIUSA’s Public Policy Committee and industry leaders. [1/5 update: Bill Gresser and Adam Greene no longer plan to join the webinar.] I am famous for asking questions.

This webinar aims to start 2021 right, with dialogue. I look forward to hearing perspectives, and to raising questions. So far I’ve prepared a list of questions regarding prospects for EB-5 legislation and regional center program authorization before the new sunset date of June 30, 2021. Of course a small panel speaking informally can’t possibly answer all these big questions, but any discussion is a good start. I hope that the discussion will grow, and that IIUSA/the industry will eventually speak to questions like these. (I may also volunteer my labor to ask questions on a larger scale — currently contemplating a conducting a survey to assess the range of regional center interests and concerns with respect to legislation and specific Grassley/Leahy proposals. Regional centers, contact me if you’d like to see this and have suggestions.) Meanwhile, feel free to add your questions re 2021 outlook to the comments on this post.

Suzanne’s questions regarding 2021 outlook for EB-5 legislation and regional center program authorization

Legislative activity coming soon…
- Is there any chance of a “clean” regional center program extension beyond June 30, 2021, or will regional center program reauthorization certainly come with significant program changes?
- Do you expect to see Grassley and Leahy reintroduce their EB-5 Reform and Integrity Act promptly in 2021?
- Is it possible/probable that anyone else in the House or Senate might introduce EB-5 legislation shortly? If so, would such alternative legislation have a chance to proceed?
- How much attention is EB-5 likely to get between now and June? Do you expect things like committee hearings and significant discussion around stand-alone EB-5 legislation, or is it more likely that RC program authorization would get tacked on to some other more important legislation? (And if so, what might that be?)
Regarding the Grassley/Leahy EB-5 Reform and Integrity Act…
- What are the major concerns/barriers in Congress for the Grassley/Leahy bill?
- What are the major questions/concerns in the industry for the Grassley/Leahy bill?
- What has been done/will be done to identify and address those questions, concerns, and barriers?
- To what extent is the Grassley/Leahy bill still open to negotiation?
- If you think the Grassley/Leahy bill as-is represents the best possible option for regional center program authorization, what’s the reason for thinking that?
Interests and goals…
- What are Grassley/Leahy trying to accomplish with the bill? Whom are they trying to benefit?
- What have industry negotiators been trying to accomplish with legislation? For what priorities have they been advocating?
- Is there any hope/plan/timeline to realize these items not in the Grassley/Leahy bill: More visas for EB-5; More marketable EB-5 investment amount/TEA definition
Options for participation, collaboration, and engagement…
- How can a concerned regional center get a hearing for their input to EB-5 legislation?
- Any options for concerned investors to assist or influence the process?
- What can IIUSA do to identify and address concerns, and broaden involvement in and support for EB-5 legislation?
- What needs to happen in the next few months to ensure that the regional center program gets extended?
Outlook for reauthorization…
- Do you see any chance of the regional center program being allowed to sunset? If that happened, what would be the likely reason?
- Do you see any chance of regional center program authorization being allowed to lapse for a time? If that happened, what would be the likely reason?
- EB-5 legislation has been actively discussed since 2015, but not passed. What reason is there to hope for a result in the next six months?
- As people involved in the process, what lessons have you learned from past legislative efforts that you intend to apply going forward?

Filed under EB-5 Events, EB-5 Law & Policy

Stabilizing the EB-5 Program

December 22, 2020 6 Comments

The Consolidated Appropriations Act, 2021 passed the House and Senate yesterday (House amendment to the Senate amendment to H.R. 133). [Update: Finally signed by the President 12/27.] The EB-5 industry will note three significant points in this 5,593-page “Omnibus”:

No country cap change: The Omnibus does not include any version of the Fairness for High-skilled Immigrants Act, or any language that would change EB visa allocation or country caps. This was a close call. The next Congress will provide renewed opportunities to tackle the issue of excessive backlogs – hopefully with improved solutions that truly involve fairness for immigrants and wouldn’t simply retroactively reorder the visa wait lines. For now, we have more time to educate Congress and the industry on unintended EB-5 consequences, and how they might be mitigated. I’m preparing a quantitative analysis that looks at issue from the perspective of different countries at various points in the EB-5 wait line (not only considering timing for the end of the line, as others have done).
No EB-5 legislation: The Omnibus does not include the EB-5 Reform and Integrity Act of 2020, a belated and sadly little-noted attempt at EB-5 legislation. Neither of the co-sponsors, Senator Grassley and Senator Leahy, wrote about the legislative amendment on their websites. (So far I just found a nice mention from Rep. Brian Fitzpatrick.) I guess that few people in the EB-5 industry heeded the call to ask their Congressional reps to support the measure, considering that most of us didn’t even know it existed until a couple weeks ago and had no input into the content or process. The IIUSA Board of Directors had opportunity to deliberate on and decide to support the legislation, and made a brave but belated attempt to explain and sell the hard compromises to IIUSA members and other stakeholders. This bill was indeed an improvement on previous versions, but would have benefited from more broad-based involvement translating into wider buy-in and stronger support when opportunity arose for passage.
Change to regional center program authorization: The Omnibus extends regional center program authorization to June 30, 2021 – significantly, not to September 30, 2021, when the funding expires. (The extension is in Division O Title I Section 104, page 2,468: “Section 610(b) of the Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations Act, 1993 (8 U.S.C. 1153 note) shall be applied by substituting ‘‘June 30, 2021’’ for ‘‘September 30, 2015.’’ ) This move finally decouples regional center program authorization from government funding. That can be good, considering how fraught the appropriations process has been, and also bad, since RC program authorization loses the benefit of inertia. Now the continued authorization of the regional center program will apparently depend on managing standalone EB-5 legislation. If you’re a regional center, pause to eat some cookies and watch the kids open presents, and then talk to your trade association/lobbyists. Find out how you can support accomplishing legislation that will work for you, because the time is short and the stakes high. We now have a few months to do what we’ve been trying to do since 2015: get EB-5 legislation with long-term regional center program authorization and reforms that help protect and don’t kill the program. And assuming you are one of the majority of EB-5 users who’s not a fat cat and not a fraud, please also seek publicity. Good legislation depends on changes to the popular perception of EB-5, and a better understanding by Congress of who’s using the program and how.

In order to maintain credibility, the EB-5 program needs stability. U.S. business people using immigrant investment make business decisions and execute contracts that rely on dependable estimates for cost of capital and the time horizon and rules for deploying capital. Potential immigrants invest hundreds of thousands of dollars in reliance on dependable estimates for the potential return on that investment. EB-5 program costs, timeline, visa availability, eligibility rules, and very existence cannot be shrouded in uncertainty or subject to major volatility. 2020 has been tough, between no-notice retroactive Policy Manual updates and threatened retroactive legislative changes. The program requires better. I look forward to changes in USCIS, Congressional, and industry leadership in 2021 and a path to more stable footing for the EB-5 program.

Filed under EB-5 Law & Policy

I-526 Processing Status

December 3, 2020 68 Comments

Under the threat of a potential law change that would re-organize the EB-5 visa wait line, people who currently face no visa wait are especially eager to know when they can receive I-526 approval and get visa applications filed. My timing consultation analysis calculates where IPO should be with I-526 processing for given dates on average, considering the composition and movement of the entire queue, official and unofficial guidelines for I-526 processing order, and anecdotal evidence. But a couple other sources also indicate which petitions are getting touched right now: the USCIS Case Processing Times page and the USCIS Check Case Status tool.

The USCIS Case Processing Times Report for Form I-526 currently gives an “estimated time range” starting at 27.5 months for countries with visas available. According to the claimed methodology, that report means that 50% of I-526 decisions in October 2020 were on cases less than 27.5 months old – i.e. filed more recently than June 2018.

The USCIS Case Status Online tool gives more current and specific information. A petitioner can enter his I-526 receipt number on this page to get a current status report for his individual case. Nothing practically prevents the petitioner or his app from also entering groups of receipt numbers, to see what’s happening with other petitions filed at around the same time. I don’t use this method myself but think it’s fair game for investors to do so, and several of my blog readers have shared the results of their investigations. The Case Status check method indicates that a large percentage of I-526 filed up through August 2018 have been assigned for adjudication and already seen action (at least an RFE), and that September 2018 I-526 are now being worked on. For example, see this analysis published by blog commenter Web. And thank you to others who have also shared their work with me.

With this in mind, if you filed I-526 before August 2018 and have heard nothing yet, you might talk to your lawyer about starting to pursue the available inquiry channels to make sure that your I-526 did not fall through the cracks. (The huge deviation in processing times shows that IPO in fact has all kinds of reasons for processing I-526 out of date order, but at least you know that you are out of order and can inquire accordingly.) If you filed I-526 in September 2018 or soon after, then you can look at I-526 filing trends to guess how much longer you may have to wait, considering the most recently reported processing speed (average 300 decisions per month) and that China I-526 from 2018 are not currently being assigned. (If much later, then one also needs to factor in the assumption that processing speed will probably change in the future.) Here’s a clip of data that I’ve collected from a variety of sources on distribution of I-526 receipts in late 2018.

Filing Month	I-526 receipts from China	I-526 receipts from all Other Countries	Total I-526 receipts
July 2018	77	173	250
August 2018	107	281	388
September 2018	165	853	1018
October 2018	120	538	658
November 2018	58	239	297
December 2018	82	706	788

Filed under EB-5 Statistics

Fairness for High-Skilled Immigrants Act

December 3, 2020 31 Comments

Update: As I hear additional news on the Fairness Act, I add notes to my Washington Updates page.

Yesterday, the Fairness for High-Skilled Immigrants Act came a step closer to becoming law, passing the Senate by Unanimous Consent. (Meaning that Senator Mike Lee, after many previous attempts, finally managed to slip the bill through at a time when no one was in the room who knew to object. See yesterday’s Congressional Record p. 49 for this smooth move, and p. 62-65 for the amended bill text.) IIUSA says “Having been amended in the Senate, the bill now returns to the House of Representatives for review and vote on the amended text.” Rep. Zoe Lofgren in the House says “While I recognize the sincerity of all Members and Senators struggling to find solutions, unfortunately the provisions sent to the House by the Senate yesterday most likely make matters worse, not better,” but also “I plan to swiftly and thoughtfully work with my colleagues to resolve outstanding issues and get a measure across the finish line that can pass both Houses of Congress.”

This legislation has been in Congress for a long time (since 2011), primarily thanks to the efforts of companies who depend on H1-B workers. The bill’s backers care about EB-2 and EB-3; the bill’s EB-5 impact is apparently an almost accidental and little-noticed side effect. But the EB-5 impact would indeed be earthshaking, since the bill proposes to eliminate the country caps that limit high-demand countries and protect EB visa availability for minority countries. This would change how green cards get allocated for conditional permanent residence, and affect all current and prospective investors who do not get CPR before the bill’s effective date. I’ve written about it several times previously, including last year when the House version H.R. 1044 got action.

I’m out of the advocacy loop, and not clear on the prospects from here, either under President Trump (whose base as represented by Brietbart slams the bill as an “outsourcing giveaway,” but who might be forced to sign if the House embeds this in other must-sign legislation) or President Biden (whose VP is the original co-sponsor to S.386 Fairness for High-Skilled Immigrants Act, but who might be open to better solutions). I’m not clear who is advocating or how for various EB-5 interests. But knowing the composition of the EB-5 backlog, I can once again remind the industry of the impact, if the Fairness for High-Skilled Immigrants Act were to become law as currently drafted.

The version of the FFHSIA in last night’s Congressional Record has these significant points for EB-5:

Removes the per-country limitation for all Employment Based visas (by amending 8 U.S.C 1152 202(a)(2) to strike reference to Employment Based visas and subsection b)
Includes transition rules and some savings provisions for EB-2 and EB-3 (“visas made available under each of paragraphs (2) and (3) of Section 203(b)”), but no transition rules or other modifications or protections for EB-5 (visas available under paragraph (5) of Section 203(b))
The effective date is “the first day of the second fiscal year beginning after the date of enactment of this Act.” I understand that to mean October 1, 2022, if the act passed now.
There’s some language regarding status adjustment that might help EB-5, but I’m not sure how to interpret it.
There’s a “prohibition on admission or adjustment of status of aliens affiliated with the military forces of the People’s Republic of China or the Chinese Community Party.” I don’t know how much this differs from existing rules, and whether it would result in reducing the EB-5 queue any more than it gets reduced already by denials. Potentially, this provision could be very harmful because negatives are notoriously hard to prove. If it came to that, how would I, Suzanne Lazicki, prove that I have no affiliation with the CCP? I have no evidence to prove my lack of affiliation.

How would the Fairness for High-Skilled Immigrants Act recognize the EB-5 backlog?

I have granular analysis that I’ve discussed in previous posts, but I fear that the detail made people’s eyes glaze over and lost attention for this important topic. So this time, I’ll just take a simple approach.

Consider the following table from IIUSA’s Discussion with Charles Oppenheim (November 19, 2020), which estimates the total current size of the EB-5 wait line.

With country caps under current law, the average 10,000 visas annually available to EB-5 get allocated in this order: no more than 7% to each country demanding visas, and any visas remaining to the oldest applicants regardless of country. Practically, this means no visa wait and no backlogs for people from countries that demand fewer than 7% of available visas, but backlogs and wait times for countries that demand more than 7%.

If country caps were eliminated, then visas just get issued in order to the oldest applicants first, regardless of country. So to estimate the “wait time for an EB-5 applicant filing today” you’d ignore all those country rows and just divide the grand total applicants by the annual visa quota. 83,000/10,000=8.3. When ignoring country of origin, the current EB-5 queue is 8-9 years long. If the FFHSIA were passed, then anyone filing a new I-526 today, regardless of country of origin, could expect to wait 8-9 years just for conditional permanent residence.

For people already in the EB-5 process, your visa wait time would be less than nine years if FFSHIA passed, with how much less depending on how long ago you filed I-526. If you filed I-526 in 2018 or 2019 from any country, you could expect to wait at least over five years for conditional permanent residence, since we know that most Chinese in the queue filed earlier than that (their filing surge occurred 2014-2017), and thus at least most of the China backlog recorded in the above chart (57,000 people) would move ahead of you in line. The FFHIA change would have most benefit for those oldest Chinese applicants–those with filing dates from 2015 to early 2017–who could expect most available visas for the coming five years, based on their early filing dates. The wait line gets more diverse from mid 2017 on, so wait times would become long for everyone then.

What difference would a October 1, 2022 effective date make? That delayed effective date would help anyone who is not from China and who does have enough time to push through the I-526/visa process and get green cards under current rules before October 2022. Otherwise, the delayed date doesn’t change much since new wait time estimates mainly depend on the number of China-born people in line, and that number may not get a chance to change very significantly in the coming 1.5 years under the current visa process.

If the FFHSIA would help you or hurt you, act at once. Contact your advocacy group/Congressional representative/advisors and let them know how you feel about the possibility that S.396/H.R.1044 Fairness for High-Skilled Immigrants Act could become law. If you’re from China and filed I-526 before 2017 (or a regional center with such investors), you are probably in favor of FFHSIA, unless that Community Party provision is a problem (though notice that you’d benefit even more from advocating for the visa quota to get applied to principals only, not family members). If you’re anyone else in EB-5, you probably want to advocate against FFHSIA, or at least advocate for savings provisions to protect investors and projects who already committed to and depend on the EB-5 process/timing outlook as defined by existing rules.

The EB-5 backlog and wait times are definitely too long, and that hurts everyone. FFHSIA proposes changes that would improve the wait time situation for some at cost of making it much worse for others. I hope that we’ll eventually have chance to unite as an industry in support of legislation that would improve the backlog and wait time situation for everyone. For example, by interpreting the EB-5 quota as Congress originally intended to apply to investors, not diluted by counting spouses and children.

Filed under EB-5 Law & Policy

Interpreting November 2020 EB-5 Visa Availability Predictions from Charles Oppenheim

November 24, 2020 29 Comments

On November 19, 2020, IIUSA held a webinar about EB-5 visa availability with Charles Oppenheim. Chief of the Visa Control & Reporting Division at the U.S. Department of State.

Those who missed this information-rich presentation can purchase the recording here. IIUSA rightly makes Oppenheim’s slides available for free to the public.

The detail from Oppenheim’s visa availability presentation is particularly relevant for EB-5 investors from mainland China, Vietnam, India, and potentially South Korea. The rest of the world, you can skip this difficult post, except the first two questions (no news on consulates resuming normal operations, but good news for Hong Kong status).

My post organizes information from Oppenheim’s presentation around key questions, and interprets data from the slides with reference to Oppenheim’s explanations from the presentation, as well as information that I’ve gathered from other sources or read between the lines. (I apologize for the delay in this post. It was not easy to write, and I’ve also been spending time trying to earn some money with my business-plan-writing day job. If you’d like to help sponsor me and create compensation for this blog work, here’s a PayPal contribution link. I much appreciate the few readers who have stepped up in support. Meanwhile, I have other belated posts/comments coming soon to share more information about I-526 processing developments and discuss promising implications of changes in Washington.)

Are EB-5 applicants from Hong Kong now considered in the same category as Mainland China?

Oppenheim answer: “No. At this time Hong Kong is still at this point treated as a separate foreign state, for IV purposes, going forward.” (Clip from the recording.) This is great news for Hong Kong EB-5 applicants. Thank you Department of State for resisting chaos and holding firm to the law.

When will consular processing resume for EB-5 visa applicants?

Oppenheim still has “no idea” when consulates will return to normal processing status. With consular operations in question, Oppenheim currently estimates that EB-5 visas actually issued in Fiscal Year 2021 will be below the number theoretically available. (His estimates account for the fact that a quarter of FY2021 has already been lost for visa issuance abroad.) On the bright side, any family-based visas that likewise can’t be issued this year will increase the EB-5 quota again next year, providing some compensation/another chance to reduce the EB-5 backlog.

What’s the latest news about visa numbers issued and available?

Of the 11,112 EB-5 visa quota for FY2020, Department of State actually issued only 3,602 visas. (Thanks to consulates having been mostly non-operational since March 2020.)
The EB-5 visa quota is 18,600 for FY2021, of which about 11,300 could potentially go to China (7% per-country quota of 1,302 visas plus the at least 10,000 visas likely leftover from the rest of the world). However, consulates are still not issuing visas, so actual visa issuance will again fall below the available limit. Oppenheim mentioned an in informal guess that it might be possible to actually issue about 3,000 visas to China and 600 to Vietnam in FY2021.
The EB-5 visa quota for FY2022 may be at least 14,200, based on Oppenheim’s informal estimate that the EB category may be 200,000 in FY2022 due to another roll-over of family-based visa numbers.

Is the government willing or able to issue more EB-5 visas through adjustment of status, to compensate for ongoing limits on consular processing?

Oppenheim stated that the visa bulletin might be moved in FY2021 to accommodate adjustment of status for EB-5 applicants in the U.S., if consular processing abroad remains limited. That sounds promising. However, the numbers suggest that this did not happen in FY2020.

Per Oppenheim’s presentation, only 1,117 EB-5 visas were issued in FY2020 through adjustment of status – even fewer than in a normal year. (According to Annual Reports of the Visa Office 1,589 EB-5 visas were issued through adjustment of status in 2019, and 1,289 in 2018.) Adjustment of status in FY2020 was not limited by the EB-5 visa quota (since only 32% of available EB-5 visas were actually issued in the year), or by low demand (Oppenheim mentioned there are about 2,500 I-485 pending at USCIS for China-born applicants). Therefore, I guess there must have been a choice to not move the visa bulletin in FY2020 in a way that would let AOS applicants advance ahead of consular processing applicants. Alternatively, USCIS slowness blocked the path.

The China queue particularly suffered in 2020 with respect to status adjustment. The number of visas issued through status adjustment for China-born applicants in FY2020 was nearly identical to the numbers from 2019 and 2018 (489, 433, 481). China ended FY2020 with over 3,700 fewer issued visas than expected, despite apparently having 2,500 applicants ready to go through adjustment of status. I wonder how many fewer visas might have been lost for China, if Department of State had only moved China’s final action date more in FY2020 to maximize adjustment of status? Oppenheim informally estimated that it might be practically possible to issue 3,000 EB-5 visas to Chinese and 600 EB-5 visas to Vietnamese in FY2021, despite there technically being about 11,300 EB-5 visas available to China and 1,300 to Vietnam, this year. His pessimistic estimate must mean limited expectations for adjustment of status as well as consular processing in FY2021. But maybe the incoming administration will clear politically-motivated roadblocks from the immigration path more quickly than we expect.

What movement can we expect from the Visa Bulletin in FY2021?

China: Oppenheim does not foresee advancing Chart B for China for the “foreseeable future” because, he said, almost 8,000 China-born applicants are already ready to go at the 12/15/2015 Chart B date. (If Oppenheim is right to guess that consulates/DOS can only practically manage to issue about 3,000 visas to China this year, and about 3,500 to 4,000 next year, then Chart B would not have to move for China until late next year. The picture would be different if consulates/DOS were able to actually issue the approximately 11,300 EB-5 visas that are technically available to China this year. It would also be different if the Visa Bulletin moved just to maximize adjustment of status for China while consulates remain nearly non-operational.)
Vietnam: Oppenheim reports that about 475 applications are ready to go for Vietnam based on the December 2020 visa bulletin movement. That’s enough to go on for awhile, considering that the consulate in Vietnam is still only conducting handfuls of interviews, and that Vietnam apparently has very few EB-5 applicants using adjustment of status. (Combining Oppenheim’s numbers for total visa issuance with consular reports that I tracked in FY2020, it appears that only 8 Vietnamese got EB-5 visas through adjustment of status in the U.S. in FY2020.) But if Oppenheim is right that it will be practically possible to issue at least 600 of the 1,302 visas technically available to Vietnam this year, then the Visa Bulletin will have to move again for Vietnam later this year so that more than 475 applicants can get visas.
India: It appears that Oppenheim expects India to say current in the Visa Bulletin throughout FY2021. He did not say this, but he left India off of the slide listing countries “at limit” in FY2021 (“Otherwise Unused EB-5 Numbers FY 2021 (Estimated)”). And I’m not surprised, since apparently about 87% of the India backlog is still stuck at the I-526 stage, where it’s practically unable to trigger the visa limit and visa bulletin. So long as the number of Indians who manage to reach the visa stage remains far below 1,300 (the number of visas technically available to India this year), India will not need visa bulletin limits this year. As of October 1, 2020, there were 799 Indians with applications on file at NVC. Oppenheim did not report how many Indians have pending I-485 in the U.S. but I gather that this number is rather off his radar. It doesn’t appear in his wait time calculation for India. (Combining Oppenheim’s numbers for total visa issuance in FY2020 with monthly consular reports that I tracked in FY2020, it appears that 301 Indians got EB-5 visas through AOS in FY2020 – about 50% of the India total. That’s relatively significant, and means maybe Oppenheim should be paying more attention to India demand through adjustment of status. On the other hand, maybe Oppenheim just reasonably assumes that USCIS will be too slow to advance another 500 Indian applicants to the visa stage in time to push India over the FY2021 visa limit.) If Oppenheim does not expect India to reach the visa limit this year, that’s mixed news. A current visa bulletin will be good for Indians near the front of the line — those who manage to get past I-526 approval this year — since they can proceed unhindered to file visa applications and potentially get final action. On the other hand, it’s bad news for Indians currently nearer the back of the line, because it means that the visa line ahead is moving slowly, and will be reduced this year by much less than the 1,300 applicants who would have exited the line if India were able to reach its visa limit this year.
Other countries: No other countries are expected to reach visa limits this year.

How can I interpret the EB-5 visa wait time estimate?

Visa wait time estimates use a simple formula: A/B=C, where A is estimated number of people currently in line for a visa, and B is estimated average number of visas available per year.

This calculation appears on the following two slides that we eagerly await in each presentation. The orange column in the first slide is variable A, the blue bars in the second slide represent result C, and Oppenheim’s assumption about variable B can be inferred from A/C. I’ve put a table below the slides clarifying how the calculation works.

Interpretation of the slide “EB-5 Applicants with Petitions on file at NVC and Estimated USCIS Applicant Data as of 10/1/2020“

Country	Actual # applicants at NVC	DOS estimated # applicants with petition on file at USCIS	Estimated Total	Estimated years to visa availability for a petition filed “today”	Implied assumption of average visas issued per year
	i	ii	A=i+ii	C=A/B	B=A/C, rounded (unrounded, there’s unexplained difference for ROW countries)
Brazil	274	940	1,214	1.8	700
China Mainland	44,803	12,158	56,961	17.2	3300
India	799	4,966	5,765	7.8	700
South Korea	205	2,594	2,799	3.8	700
China Taiwan	148	1,535	1,683	2.4	700
Vietnam	1,662	3,837	5,499	7.9	700
Rest of World	1,172	7,910	9,082
Grand Total	49,063	33,940	83,003

A few points to note:

Years to Visa Availability: The wait time estimate refers to years from the date of I-526 filing to the date of having a visa available for conditional permanent residence. The wait time estimate is a function of how many total people are in the process, regardless of where they are in the process or how long or short I-526 processing times or other processing may be. For example, 1.8 years for Brazil just means that there are enough Brazilians in the system today to claim 1.8 years of available visas. The actual visa wait time for a Brazilian filing today will likely be longer simply due to the separate factor of I-526 processing times, which have been longer than 1.8 years. For countries facing long visa availability waits regardless, I-526 processing times occur concurrently with, not consecutive to, the visa availability wait. (Though I-526 processing time can affect the visa availability wait if USCIS approves petitions out of date order.)
Applicability: Oppenheim’s table makes a timing prediction specifically applicable to a single point in time: Estimated years to visa availability for a petition filed “today” October 1, 2020. Remember, this is a queue problem. At any given moment, the remaining wait time for each person standing in a long queue is different depending on how close or far that person is from the front of the queue. There’s no such thing as “a wait time for Vietnam,” but only “a wait time for someone from Vietnam who entered the queue at a certain time.” Oppenheim’s wait time estimate specifically applies to the very back of the queue. If you’ve already been in the queue for awhile, then your estimated wait time will be shorter than whatever’s estimated for your country in Oppenheim’s calculation for today. (We can estimate how much shorter by switching out the data in columns i and ii in the above table, replacing it with the subset of applicants who have earlier I-526 filing dates than yours.)
Vietnam: The calculation reveals a typo on the bar chart slide. Vietnam should be 7.9 years, not 7 (consistent with the height of the bar and the assumption that Vietnam’s average visa availability assumption is the same as every other country: 700, not 800). 5,499/700=7.9, not 7.
South Korea: I note a jump in the number of future South Korean applicants in the I-526 stage. The estimated wait to visa availability for a South Korean filing today (3.8 years) is now long enough to potentially exceed I-526 processing times. If USCIS takes less than 3 years to advance all those South Koreans to the visa stage, then someone filing I-526 today from South Korea might find himself in a South Korean crowd at the visa stage, with the Visa Bulletin then providing crowd control with final action dates. This concern does not apply to Brazil and Taiwan, where estimated visa availability waits remain well below processing times.
China: The most controversial assumption in Oppenheim’s calculation is annual visa availability for China. Oppenheim explained that the current estimates assume about 3,000 visas for China in FY2021 and 3,500 to 4,000 visas in future years. (Thus the average 3,300 in the calculation – higher than the 3,000 used in his last wait time calculation from October 2019.) However, Oppenheim granted that China could well reach more like 7,500 visas per year — considering low incoming rest-of-the-world demand, and that country caps limit India and Vietnam to only about 700 visas each per year for the next 7-8 years. If the China wait line estimated at 56,961 could proceed at a future speed closer to 7,000/year than 3,000 per year, then the estimated time of arrival for someone now at the end of the China line could fall to almost half of the current estimate.
Assumption about future visa applicants to result from pending I-526: The green column — DOS estimated # applicants with petition on file at USCIS –is calculated by multiplying the number of I-526 pending at USCIS by assumptions about I-526 denial rates and family size. I have reverse engineered this calculation, based on Oppenheim’s hints about his assumptions (including from a slide in the presentation that gives “average percentage of EB-5 principal investors” – meaning of all EB-5 visas issued, how many were issued to principals rather than family). I won’t add that detail to this already overlong post, but pause to note that these assumptions are also open to rethinking. The I-526-to-future-visa-applicant multiplier that Oppenheim uses for his calculation is based on historical experience, and does not look forward to future differences from potentially increased age-outs, attrition, and denial rates.
Applicants not counted: It’s important to remember that in real life, the blue and green column in Oppenheim’s table are less than the total inventory of future EB-5 applicants. Oppenheim’s table counts inventory in two places: pending I-526 at USCIS, and documentarily qualified applicants pending at the National Visa Center. Future EB-5 applicants also exist in these other places not counted in Oppenheim’s Estimated Total: applicants on pending I-485 at USCIS, and people with I-526 approval but not yet on file at NVC due to delays in getting/submitting documents or to the fact that Visa Bulletin Chart B prevents them from filing yet. I guess Oppenheim leaves these categories out of the calculation because pending I-485 numbers were historically small and it’s hard to count people associated with I-526 approvals who aren’t yet on file at the visa stage. But these missing categories are significant at least for India, which has a lot of people doing status adjustment in the U.S. (50%, in FY2022), and China (as evidenced by the fact that the number of Chinese applicants at NVC increased by almost 10,000 between October 2019 and October 2020—an increase that must have come out of that uncounted twilight zone between I-526 approval and visa stage, since it it’s not reflected in I-526 inventory change between October 2019 and October 2020.)

Does Charles Oppenheim overestimate or underestimate actual EB-5 wait times?

Let’s go back to our equation, A/B=C, where A is estimated number of people currently in line for a visa, and B is estimated average number of visas available per year. Oppenheim overestimates or underestimates wait time C depending on the accuracy of A and B, which contain assumptions about what will happen in the future.

As discussed above, Oppenheim’s calculation of A can be challenged by questioning his assumptions about future family size and attrition rate (which would make his A calculation err high), and/or by pointing out the missing categories of future applicants (which would make his A calculation err low). B could be an underestimate if future visa availability is greater (which will almost certainly be true for China, considering low rest-of-the-world demand, and could be true for everyone if visa reforms get enacted).

So, it’s complicated. I dream of hosting a webinar with a spreadsheet that lays out the variables and formulas, and we can play what-if games together with the numbers. What happens to the wait time estimate result if I plug in an assumed average I-526 denial rate of 70% instead of 80%? What happens if I add a guessed 10% attrition rate at the visa stage? What if I guess 10% of children per year aging out? What if I delete the family size variable from the equation entirely in case the law changes to only count investors? What if I start from I-526 filing numbers to try to quantify those uncounted categories of people who have I-526 approval but not on file at the National Visa Center? How does the calculation change if instead of picking one average number for visa availability, I look at visa availability year-by-year into the future based on what I know about how the current backlog will spread out over time? If I need my wait time to be a maximum five years, say, what combination/quantity of changes could yield that estimated result? (And how plausible do those changes look?)

Indeed, I have prepared visa timing scenario analysis, if I can manage to wrap it up in a sellable package. The alternative to such a complicated exercise over Excel is to think wishfully “Well since the wait time is complicated and questionable maybe the wait time is actually short, at least as short as I need it to be.” I’ve heard that sentence spoken in almost those words, again and again. But people with lives/business/investment dependent on actual EB-5 timing – project companies or investors – need a better sense of the probabilities. If you’ve read patiently to the end of this long and difficult post, I count you in this vigilant group, and will try to be available for additional assistance.

By the way, you can visit my Data Room page to find links to Oppenheim presentations from previous years. Or if you’d like to book a consultation with me, I will curate data for you relevant to your specific questions and concerns. I dare say that I have my fingers on every piece of quantitative information that has been published for EB-5 in the last 10 years, and most of what’s available from the past 27 years.

Filed under EB-5 Statistics

FY2020 Q3 Processing Data

November 17, 2020 80 Comments

USCIS has finally published form processing data for FY2020 Q3 (April to June 2020) on the USCIS Immigration and Citizenship Data Page. As with last quarter, EB-5 form data is now only presented in the All Forms report, to make it maximally difficult to find and read. Here is the summary, followed by charts to put the data in context of historical trends.

EB-5 Petition Processing Data for FY2020 Q3 (April to June 2020)

Form	Receipts	Approvals	Denials	Pending
I-526	40	576	346	15,955
I-829	739	725	23	10,332

Notes on the charts:

The I-526 trend chart suggests a possible method in IPO’s madness. Maybe their goal is to reduce approvals to equal denials. As discussed in the previous post, the volume of I-526 adjudications has been extremely low overall under Sarah Kendall’s watch. But the data shows that IPO has been denying as many I-526 as ever – it’s just approvals that have fallen. And perhaps not coincidentally, approvals track denials over the last five quarters.
I-526 receipts remained extremely low into Q3. And who is surprised? When USCIS proposed raising the EB-5 investment amount, they projected that the major price increase would result in raising more money. I tried to explain the Law of Demand in my comments, and was ignored. And now we see: doubling the minimum EB-5 investment amount resulted in raising 45 times less investment per quarter in FY2020 than the average for 2013 to 2019. Policy-makers, is this what you want? Recent IPO behavior, the pandemic, and visa oversubscription also share blame for decimated demand. If the United States actually wants billions of dollars in EB-5 investment, not to mention the 10+ new jobs required to come with each investment, EB-5 program policy reforms are needed.
I-829 receipts and adjudication volume do not show particular upward or downward trends. The I-829 approval rate remains high. Volume of adjudications makes clear that IPO has reallocated resources away from I-526 to I-829.
If IPO continued to process pending petitions at the rate evidenced in Q3, then they will take 4.3 years just to process all currently-pending I-526 and 3.5 years to process currently-pending I-829. Those rates would be over 7 times slower than Congress intends. I trust productivity will be improved, and future processing times will not actually be that long.
If IPO continues to approve I-526 at the rate shown in FY2020 Q1-Q3, it will only approve about 2,200 I-526 per year – far below the level needed to use the typical 10,000 annual EB-5 visa quota. This is what building The Wall through legal immigration looks like, and needs to change.
In 2020, form receipts at IPO were five times below the average since 2016. That means five times less fee revenue. And USCIS wonders why it has budget problems. (One of the many questions Sarah Kendall did not answer last week was my question about how IPO would maintain integrity in adjudications, in light of reduced fee revenue due to reduced volume of receipts.)
The Q3 report clarifies that the I-924 row combines regional center terminations and reaffirmations with I-924 application filings. Since such a combination is meaningless, I am no longer reporting I-924 data points.

For all the in-process investors reading this and thinking “what does this mean for me,” here’s how to think about the question. Take the number of pending forms just reported in your category, divide that by the number of approvals plus denials just reported for your form type, and the result is the number of quarters it would take to process every petition in the inventory, assuming first-in-first-out order and that future processing volume doesn’t increase or decrease. This number probably gives a ballpark estimate for the very longest your petition could take, assuming that processing is more likely to, in fact, get better than worse from here, that you’re not at the very end of the line, and that exceptions to FIFO order will benefit rather than delay your petition. (If you’re from China or a very recent investor from India and Vietnam, the picture gets more complicated for I-526.) In my I-526 timing consultation, I try to drill down further to quantify exactly where you are in the queue and how queue movement will affect you, considering the impact of filing surges, the distribution of I-526 filings by country, the visa availability approach impact, political factors, and what I see anecdotally vs what’s reported about I-526 processing. But it’s complicated by limited data and the number of exceptions to FIFO. May USCIS one day get staff and leadership who believe in order and transparency, so that simple questions about process timing can get the simple answers they deserve.

Filed under EB-5 Statistics

Report on Nov 2020 IPO Non-Engagement

November 13, 2020 12 Comments

This week, the USCIS Investor Program Office used three venues to dismay the public with a disingenuous presentation of ostensible EB-5 program updates. You can find this non-engagement posted in PDF form in the USCIS Electronic Reading Room, recorded on Youtube, and as a presentation by IPO Chief Sarah Kendall to IIUSA. (The three are essentially identical.)

I learned a few things from the presentation.

To start with the positive, IPO says that they recognize and are actively working to fix two problems: the issue that family members have been scheduled on different days for I-829 biometrics (a system glitch), and the issue of delay in sending approved I-526 to the National Visa Center (a temporary staffing issue).

The most negative update: not a word in answer to many urgent clarification questions about redeployment; only insulting parroting of previously-published language with no acknowledgement of industry feedback.

IPO’s dedicated staff is currently at 232 people – down but not much from the last-reported level of 245 people as of March 2020. I’m happy to hear that the furlough threat between March and August didn’t result in more attrition. Almost 100% of staff have been working from home since March.

IPO indirectly responded to the question of whether the process for assigning I-526 is first-in-first-out, for petitions with visas available. In the presentation and also an additional Q&A on the Visa Availability Approach FAQ page, IPO highlights project review as a second factor in determining I-526 processing order. “IPO manages Form I-526 petition inventory through workflows factoring in whether: (1) A visa is available (or will be available soon); and (2) The underlying project has been reviewed. Workflows are generally managed in FIFO order when a visa is available or will be available soon.” This helps to explain what we see anecdotally – that I-526 are not necessarily assigned in filing date order even for people with identical visa availability circumstances. Petitioners associated with projects already reviewed in previous petitions can apparently expect swifter attention than those who invested in novel projects — creating an asymmetry that’s understandably practical but with negative results from a public policy and integrity perspective.

I-526 and I-829 productivity have not continued to improve. From March 2020 to August 2020, the presentation says that IPO averaged 304 I-526 completions per month and 265 I-829 completions per month. That’s no improvement on January to March 2020, and still three to four times lower than the IPO’s productivity in 2017 and 2018, before Sarah Kendall took over as Chief at IPO. (See the table at the base of this post for detailed reference.) Most disheartening: Kendall did not regret the dismal productivity over the past few months or foresee future improvement, but actually boasted about the numbers up to August 2020 by comparing them favorably to her own worst record in mid 2019. There were 16,633 pending I-526 at last report. If the current abysmally low productivity continues, an average I-526 filed today won’t even get looked at until 16,633/304=55 months from now. (The visa availability approach offers a time discount for I-526 from low-volume countries, but at such low productivity even they would wait three years for attention, according to per-country data, while high volume countries would be looking at well over five years unless IPO performance improves.)

“What are you doing to ensure program integrity today, USCIS?” The answer: “Sorry we can’t know what’s going on with EB-5 investment today because due to our low productivity we’re nowhere near being able to examine new files – and at our current rate we won’t even look at investments happening now and petitions being filed today for another three to five or more years in the future.” That answer should make Congress very angry. It certainly angers and frustrates the industry, as we try our best to maintain integrity even as USCIS won’t examine or let us know what’s going on. Until USCIS improves productivity, it’s basically saying “Welcome wannabe fraudsters, come over to EB-5 where we’ll offer you many years to operate in the dark while we waste resources implementing a time-is-no-object process on old petitions, actively discouraging new honest use of the program.” And still Kendall dares to claim that there’s integrity in using an office of 232 people to implement a new process so slow that it can only process about 570 investor petitions per month – less than 3 per IPO employee – while large backlogs wait unexamined. Biden administration, note that the USCIS Investor Program Office needs changes, and quickly. As recently as 2018, before Sarah Kendall took over, IPO was more than three times more productive with fewer people. We need that performance back as soon as possible.

Overall, IPO’s presentation is a masterclass in non-engagement. The playbook:

Ignore questions. (Among the ignored questions, see this list from IIUSA, most of which I wasted my time writing. USCIS particularly went out of its way to avoid answering questions about policy manual feedback, redeployment policy changes, source and path of funds policy changes, and I-526 data by country.)
In the guise of answering questions, reiterate word for word what the public already knows from information previously published. (This method was used to not answer our clarification questions about processing times, the visa availability approach, and redeployment policy updates, and to provide non-information about Form I-924A.)
Allow no interaction whatsoever. While Sarah Kendall did at least appear live at the IIUSA meeting, it was only to read aloud her talking points from the PDF and Youtube Video – no questions or comments were allowed. “Public engagement” used to mean that USCIS would have a quarterly call or meeting to talk to and listen to stakeholders; now all we can do is listen to a YouTube video and give it a thumbs down, or take the public engagement survey to indicate that we are very dissatisfied. (At least do this, everyone, for what good it does.) IPO is showing simply zero good faith or willingness to take stakeholders as partners.

Sarah Kendall said that “Program integrity is at the forefront of everything we do. IPO is continually fielding questions from Congress and others on performance in this area.” I choked. As someone who actually does care about and stand for program integrity, I wish I could field questions about IPO’s performance. Congress and others: contact me. Senator Grassley’s office: I understand your concerns and would love to tell you true stories that USCIS and the lobbyists won’t tell you. David North, I’d even be happy to chat with you. I can provide detail and evidence regarding specific IPO practices and policies that have – by malice and/or simple stupidity — gutted EB-5 program credibility, invited abuse, and undercut every Congressional objective for EB-5, from job creation impact to promotion of economic growth in rural and distressed areas. (In these efforts the lobbyist side has a culpable role as well, but that’s a conversation for another day. If only the majority of EB-5 users had any voice at all in the industry!)

As USCIS acknowledges in the presentation: “we have seen that the vast majority of petitions and regional centers are engaged in legitimate business activities and endeavor to strengthen U.S. communities by creating jobs.” The same cannot be said of IPO under current leadership. If you’re part of the new administration, and motivated to heal our legal immigration system from the recent efforts to savage it, the Investor Program Office at USCIS needs your urgent and early attention. EB-5 can and should be a credible and effective tool for economic growth, job creation, and immigration by people who immediately benefit the United States. For that to happen, the program needs competent and responsible new management. (And indeed, this need applies to USCIS as a whole.) [12/2020 update: Sarah Kendall has left IPO, replaced for now by someone named Todd Young serving as acting chief. Now I feel bad. In Ms. Kendall’s defense, she probably did exactly and simply what she was hired and directed to do at IPO.]

Calendar Period	Number of employees reported at IPO	Average I-526 processed per month	Average I-829 processed per month	Average total investor petitions processed per month	Average employee productivity, in terms of petitions processed per month
2016	110	934	95	1,029	9
2017	185	985	286	1,271	7
2018	200	1,221	193	1,414	7
2019	212	213	142	355	2
2020 Jan-March	245	301	262	563	2
2020 March-August	232	304	265	569	2

Filed under EB-5 Events, Updates from USCIS

What is normal I-829 processing?

October 31, 2020 15 Comments

The latest USCIS Check Case Processing Times page update gives the implausible report that Form I-829 is not considered “outside normal” processing unless it was filed almost 20 years ago, before May 2001. But not to fear — this does not mean that I-829 should take, will take, or have normally taken that long to process.

What does the report mean?

I have a theory that could explain the I-829 processing time update: maybe USCIS finally adjudicated a batch of I-829 petitions held limbo since 2002 over compliance with Public Law 107-273. (A situation described at the end of the post, if you’re interested.) If that’s correct, then the report is good news. (And the only alternate explanation I can think of is that 234 months is simply a made-up number or a typo.)

Certainly, the page update does not mean that 36.5 to 234 months is now or ever has been a normal or expected range for I-829 processing. In communication with stakeholders, USCIS treats the reported “estimated time range” as defining normal processing — but that application is simply mistaken, given the reporting methodology. As explained on the USCIS website, the processing time report Estimated Time Range uses a method where only the first month represents something like a normal processing — the median processing time of recently adjudicated cases — while the larger month represents the border of extreme outliers in recent adjudications. Unfortunately, the report uses that larger month to calculate the “case inquiry date.” This unreasonably prevents inquiries until a pending petition is older than 93% of cases recently processed — and creates unreasonable situations like the 20-year-old cutoff currently published for I-829. A published “case inquiry date” in May 2001 is good news in the sense that it’s obviously ridiculous and discredits the way processing time report case inquiry dates are reported and used.

Alternate data for I-829 processing times

When the USCIS Check Processing Times Page is misleading, how else can we get a sense of normal and actual I-829 processing times? Available sources include sporadic reports of specific adjudications, I-829 volume trends, and the law.

In the USCIS FOIA reading room, there’s a file I-829 Approvals, Denials, and Receipts for Q1 of FY19 (PDF, 257.8 KB). The file lists the filing date and the approval or denial date for every Form I-829 adjudicated October 2018 to December 2018. I put the file in Excel and made a chart to show the pattern of actual processing times in this quarter for which we happen to have have complete data. As illustrated in the chart, the majority of decisions (79%) came in under 30 months. (Specifically 18-30 months: a wider ranger than one would expect from a nominally FIFO process.) And then there was a very long skinny tail of outliers.

Meanwhile, back around December 2018, the USCIS Check Case Processing Times page was reporting an I-829 estimated time range of 30 to 39 months (as recorded in my on-going log of processing time reports). Most people looking at that report in 2018 would not have interpreted the reality: that 79% of I-829 being processed had waited less than 30 months. The report was misleading, even if it may have been technically accurate in reflecting the median and 93rd percentile of recent adjudications.

If most I-829 petitions adjudicated at the end of 2018 had a processing time between 18 and 30 months, what can we guess about I-829 adjudications today? Actual processing times today should be shorter or longer than that depending on how much productivity has increased or decreased since then. (Receipt volume should not vary the workload much, since the annual quota for CPR visas naturally paces demand for PR.) The following chart illustrates I-829 filing and productivity data reports from the USCIS Citizenship & Immigration Data page.

Productivity (approvals+denials per quarter) leading up to December 2018 was a bit higher overall than productivity since then, which would naturally mean that people getting I-829 decisions today probably waited longer than people getting decisions in December 2018. But future I-829 processing times promise to be shorter, if the productivity improvement evident early this year turns into a continuing trend.

The Law

In assessing what’s “normal” for I-829 processing, we needn’t just consider reported times, or actual times in recent experience. The fact that 1.5-to-3-year times are typical doesn’t make them normal. To quote from the 2020 Final Fee Rule: “DHS acknowledges its obligation to adjudicate Form I-829 filings within 90 days of the filing date or interview, whichever is later. See INA section 216(c)(3)(A)(ii), 8 U.S.C. 1186b (c)(3)(A)(ii).”

The Public Law 107-273 Saga

The “234 months” in the current I-829 processing time report could only be true by its methodology if indeed 7% of I-829 recently processed were more than 234 months old. Is that even possible? Reaching into my memory, I realize that yes, I do know of one multi-decade delay factor affecting a few cases. Here’s what happened.

In 1995 to 1998, a number of EB-5 investors received I-526 approval for deals that the immigration service would later judge to be problematic.
In 1998, the Immigration and Naturalization Service (INS), the predecessor agency to USCIS, issued four precedent decisions addressing the eligibility requirements for EB-5 petitions. The publication of these precedent decisions resulted in litigation over their applicability to cases at various stages of adjudication.
In 2002, Congress passed Public Law 107-273 with language to resolve the situation for EB-5 investors who had petitions pending when the 1998 precedent decisions changed the rules. P.L. 107-273 offered options for these immigrants to perfect their investments in order to remove conditions on permanent residence. P.L. 107-273 specified that the immigration service must publish implementing regulations in 120 days (hahahahaha), and could not take adverse action on I-829 for those immigrants until implementing regulations were effective.
Twice a year from 2003 to 2010, the OMB Unified Agency announced the immigration service’s intent to finalize/propose regulations soon. Nothing was published or finalized. The pending I-829 for petitioners affected by PL 107-273 stayed pending for nearly a decade.
In 2010 at an EB-5 stakeholder meeting, USCIS announced that those PL 107-273 I-829 petitions were finally getting attention. USCIS said that they had just reviewed and approved some of the I-829, and had 581 affected I-829 left that would be held in abeyance pending finalized regulations.
2011: A Proposed rule was finally published in the Federal Register for “Treatment of Aliens Whose Employment Creation Immigrant (EB-5) Petitions Were Approved After January 1, 1995 and Before August 31, 1998.” The public commented.
2011-2019: Almost another decade passed, and the proposed regulations were not finalized.
October 2020: An I-829 processing times report suggests that USCIS recently processed a batch of I-829 about two decades old. I hope this means PL 107-273 closure at last. Also, that USCIS will take a lesson from this story: avoid retroactive rule-changes!

Filed under EB-5 Resources

EB-5 process illustration (Visa Bulletin questions)

October 23, 2020 54 Comments

The Visa Bulletin exists to provide crowd control for the visa process. But it’s complicated – even for Department of State apparently, as they’re currently over a week late with the November 2020 visa bulletin. What’s happening behind the scenes, as DOS tries to decide what to put in the visa bulletin?

The visa process and timing for EB-5 are complicated by a multi-stage and multi-constraint process. The Visa Bulletin exercises a measure of control by publishing filing and final action dates that help to pace visa demand to match available supply. But knowing supply and demand is not enough to guess the visa bulletin, thanks to other factors at work.

In an attempt to add some clarity, I made a visual to illustrate the stages and constraints that determine what happens with the visa bulletin and EB-5 visa wait times. (This is part of my still forth-coming but belated webinar on China EB-5 visa timing – my apologies to those who have been waiting patiently.) I hope that this image can help to orient readers and replace a thousand words of explanation.

Points I particularly want to make with this image:

Getting a green card is roughly a two-stage process (first I-526 petition, then visa application), but includes five places where an in-process EB-5 applicant could be at any given time. To estimate visa wait times, which depend on total EB-5 demand, one should count applicants in all five places. For the visa bulletin, which depends on currently-eligible EB-5 visa demand, Department of State just looks at people in four places. DOS does not count pending I-526 for visa bulletin analysis, since this population can’t practically proceed to application filing or final action yet, lacking I-526 approval.
The visa bulletin filing and final action dates serve as constraints to control the flow of people through the EB-5 process, but they’re not the only constraints at work. USCIS processing productivity also makes a significant difference in determining who gets to move to final action and when. And these days, COVID-19-justified shutdowns can block or expedite final action for individuals in practice.

Application to timing questions:

My priority date is available or current in the visa bulletin — why hasn’t my I-526 or I-485 been approved? Because the visa bulletin is not the only constraint. USCIS capacity and willingness to process petitions can also slow the process, even for petitions with visas available.
Why have India and Vietnam been getting different visa bulletin treatment despite having about the same predictions for total visa wait time? The wait time predictions for India and Vietnam in 2019 were about the same because they had about the same total number of people in process. But — at different stages. Many Vietnamese have approved I-526, and thus in the stage where the visa bulletin controls their forward movement. Meanwhile, many of the Indians still have pending I-526 – thus still out-of-range for the visa bulletin. Therefore, recent visa bulletins have been tight for Vietnam but loose for India.
Does the relaxed visa bulletin for India mean that total visa wait times for India have shortened? Not for everyone. The current visa bulletin needn’t account for the thousands of Indians with pending I-526, but those thousands still exist. Most will eventually get I-526 approval, one trusts, thus expanding the visa-stage queue and triggering future visa bulletin movement.
Can total EB-5 visa demand be estimated by adding applications pending at the National Visa Center to applicants associated with pending I-526? Yes, as an approximation. But keep in mind that this method counts two of the five stations where applicants can be at any given time. This reminder is particularly important for China timing estimates, which have risked undercounting demand.
Does the visa bulletin affect everyone at the visa stage equally? Not necessarily, because the visa stage is divided into groups with different circumstances. Applicants at the National Visa Center and on I-485 might react equally in a normal year, but not in 2020, when COVID-19 precautions have blocked final action for consular processing but not status adjustment. If DOS does advance visa bulletin final action dates now, it will practically only help I-485, while potentially disadvantaging visa applicants dependent on closed consulates.
Why is Department of State still sweating over the November 2020 visa bulletin? Because it’s tough to create order right now in the visa process. Should DOS relax the visa bulletin to let U.S.-based applicants go full steam ahead, with the benefit of maximizing visa usage in a heavy supply year but the disadvantage of leaving applicants abroad behind, and risking retrogression? Or should DOS tighten the visa bulletin constraint, and thus help keep an even playing field and avoid future retrogression — but at the cost of letting visas go unclaimed? How do they balance the effect of the visa bulletin constraints with the effect of constraints outside their control: the pandemic, USCIS productivity, and USCIS willingness to advance documents through the process? Political winds may also be a factor. In the July 29, 2020 Hearing on USCIS Oversight, Rep. Zoe Lofgren mentioned that she had received complaints of administration officials overruling career civil servants with respect to the visa bulletin. No doubt Stephen Miller is motivated to do whatever he can to ensure that FY2021 does not fulfill its potential as a record year for EB visas issued. Congress has also flirted recently with changing the most important process constraint — the number of annual visas available. There’s still the president’s Executive Order on Hong Kong, yet to be interpreted and also possibly a sticking point. But I believe that the career civil servants are currently still working hard to navigate very complicated terrain in the fairest possible way.

UPDATE: The November 2020 visa bulletin finally published on 10/29/2020 has no surprises — same wording as usual, and dates consistent with the October 2020 bulletin. The China cut-off dates remain specifically for “China-Mainland born.” Good job standing up for law and order, civil servants.

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

AAO decisions on source and path of funds appeals

October 19, 2020 6 Comments

Petitioners who believe that their I-526 was denied in error have the option of appealing to the Administrative Appeals Office. AAO decisions on these appeals eventually get published to the USCIS website, where I read them and take notes to learn more about directions in EB-5 adjudications. I also download copies of the decisions, since the recent USCIS website redesign makes the decisions awkward to find, and since USCIS sometimes deletes files (as happened recently with all I-526 decisions from late June 2020 to September 2020, for example).

For community reference, I have made a folder that collects all AAO decisions since 2018 that specifically address source of funds, including a number of decisions since deleted from the USCIS website: https://www.dropbox.com/sh/igmg6anauua0mtz/AAA2uOuDIfTmKd1C72UJV74Ua?dl=0. A majority of the source of funds appeals since 2019 involve petitioners from China or Vietnam whose path of funds included third party exchangers. The decisions help trace the development of USCIS/AAO thinking on the issue of currency swaps, and include a few sustained appeals. While I do not work with EB-5 source of funds, I hope that this collection of AAO decisions will be helpful reference for people who are facing source-of-funds-related RFEs and NOIDs, or litigating on behalf of EB-5 investors. And I would love to see updated industry articles and advocacy on source/path of funds adjudications. The articles I know about (linked below) are from 2017/2018.

In a currency swap, the EB-5 investor sends local currency to the local account of an intermediary, and the intermediary then wires an equivalent amount in US dollars to the investor’s account in the U.S. Starting in late 2016/early 2017, USCIS began to issue RFEs requesting source-of-funds documentation for the intermediary/third party exchanger’s funds, as well as evidence to overcome presumption that the exchange itself was unlawful. Older articles for reference:

Third Party Currency Swaps: Considerations for RFEs (October 2018) by Jennifer Hermansky in IIUSA Regional Center Business Journal
How USCIS “indebtedness” and “currency swaps” policies are inconsistent (June 21, 2018) by Kristal Ozmun in EB-5 Investors Magazine
I-526 Practice Tips to Help Avoid RFEs and NOIDs on Third-Party Exchangers (November 16, 2017) by Kristen Ng in National Law Review
Moving the Goalposts Yet Again: USCIS Issuing RFEs on Currency Swap Cases, Departing from Years of Accepted Practice (April 4, 2017) by Kelly Goldthorpe and Matthew Galati Green and Spiegel

Filed under EB-5 Law & Policy

Assessing EB-5 TEA Qualification (online tools)

October 16, 2020 Leave a comment

How can we tell whether an area qualifies as a Targeted Employment Area for EB-5, now that states no longer issue TEA designation letters?

Letters are a handy form of evidence, better than printing out thousand-row spreadsheets, so most Form I-526 will still be accompanied by a letter that presents data and explains TEA qualification. The project company, regional center, or lawyer can hire a private expert to write the letter. But naturally, the analysis won’t look as automatically authoritative as a letter signed by a state labor department. So how can we still feel confident about TEA analysis? With TEA qualification making the difference between a $900,000 investment and a $1.8 million investment, we want to be sure on this point.

Thankfully, new online tools have helped to add convenience and transparency to the TEA process. The websites for the U.S. Census Bureau and Bureau of Labor Statistics are quite difficult for laymen to navigate, but three EB-5 industry sources have compiled relevant Census and BLS data in online TEA tools. I can recommend the following, having tested each (and if you know of any others, send me a link and I’ll try them out too): IIUSA TEA Tool, Impact DataSource TEA Tool, EB5 Affiliate Network TEA Tool.

The TEA tools are set up so that you enter an address, and the tool will tell you whether and how that address can qualify as a TEA. The tools use the same data options and methods consistent with USCIS guidance, while differing in which types of TEA geographies they particularly highlight or facilitate checking.

As a reminder, a given address may qualify as a TEA with respect to its location in the following geographies: single census tract, census tract group, MSA, county that is within an MSA or contains a city/town with population over 20,000, city/town with population over 20,00 which is outside an MSA, or rural area outside an MSA and not in the outer boundary of a city/town with population over 20,000. (Census tract group is the most common type of TEA.) In addition to geography options, TEA designation offers data options (with data available from the Bureau of Labor Statistics and/or U.S. Census Bureau explicitly sanctioned by USCIS as reasonable). If a given address qualifies as a TEA at multiple geographic levels and with multiple data options, so much the better.

I’d go to the IIUSA tool first if I wanted to scan a map looking for obvious TEA areas, or if I were interested in any geography option besides census tract group. I’d go to the IDS or EB5AN tools first if I expected a location to qualify as part of a census tract group. Both the IDS and EB5AN tools automatically identify which contiguous census tracts will optimize the TEA opportunity within USCIS policy restrictions. The IDS tool is unique in offering an additional trend feature that uses the latest monthly BLS data to help foresee future TEA changes – which will be significant in 2021, considering the crazy employment year in 2020. The EB5AN tool has the advantage of integrated map with census tract overlay, and the option of downloading a free template TEA letter.

I think it’s easy and good practice to just check all three tools when examining a particular location, though each should offer the same conclusions. That way if one company or organization eventually neglects to update data on time or makes some other slip, the difference from another tool will flag the issue and help prevent mistakes. And then, having used the online tools as a research reference, you can pay a qualified consultant to actually write up a TEA analysis letter, present the data, and remind you about the TEA qualification issues besides data and geography (TEA timing, and where jobs are located).

TEA Tool Comparison

Tool	IIUSA TEA Tool	Impact DataSource TEA Tool	EB5 Affiliate Network TEA Tool
Source	Industry trade association	Economist service provider	Regional center operator
Advantages / Distinctive Features	Best if you want to scan a map to visually identify rural areas and single census tract TEAs. Only tool that reports county, MSA, and city-level data as well as census tract data. Map portion of the tool functions most smoothly.	Good for identifying census tract group TEAs. Best for predicting future TEA changes, as it separately reports and illustrates the latest monthly unemployment data trends. Facilitates creating your own census tract groups. Includes MSA TEAs.	Good for identifying census tract group TEAs. Only option that offers to automatically generate a free TEA letter. Census tract grouping tool is integrated with the map. More detail than IDS (but less than IIUSA) for county and rural TEA.
Comparative Disadvantages	Does not identify or automatically calculate census tract group TEAs (though it provides data that allow doing this oneself).	The map integrated with the tool is not visually helpful – no overlay of census tract or other boundaries. While correctly assessing TEA qualification at the county, MSA, and rural level, does not show the data used to make those determinations.	Intrusive advertising. Map portion does not work as smoothly as IIUSA’s. Can have technical glitches if checking multiple addresses. Rounding data to two decimal places maximizes opportunity for marginal TEAs (strength and weakness). Does not flag MSA TEA.

As an illustration, a few screen shots of the various options for checking how my office location may qualify as a TEA.

Filed under EB-5 Resources

Source of all invested capital

October 8, 2020 7 Comments

From: Suzanne Lazicki
Sent: October 8, 2020 7:04 PM
To: ‘public.engagement@uscis.dhs.gov’
Subject: EB-5 Question

Dear IPO,

This email asks a single important question in response to the EB-5 Call for Questions. My small business owner clients and I look forward to your response.

Why does the May 2019 USCIS Adjudicator Training instruct adjudicators to apply the lawful capital requirement in 8 CFR 204.6(g)(1) only to “non-EB-5 sources of capital invested in the NCE,” creating a requirement specific to standalone petitioners to identify and be liable for source of funds for other NCE owners?

8 CFR 204.6 (g)(1) does not say that pooled investment is allowed “provided that the source(s) of all non-EB-5 capital is identified and all non-EB-5 owner capital has been derived by lawful means.” Rather, the regulation says “all capital.”

” ….. The establishment of a new commercial enterprise may be used as the basis of a petition for classification as an alien entrepreneur even though there are several owners of the enterprise, including persons who are not seeking classification under section 2 0 3 (b) ( 5) of the Act and non-natural persons, both foreign and domestic, provided that the source(s) of all capital invested is identified and all invested capital has been derived by lawful means.” 8 CFR 204.6 (g)(1) (emphasis added).

8 CFR 204.6 (g)(1) refers to all capital and all owners. What’s required — and not required — of a given petitioner with respect to other NCE owners applies regardless of owner type per the regulations.

The Form I-526 and I-526 Instructions request evidence only for the petitioner’s own lawful source of funds. It is unreasonable to interpret 8 CFR 204.6 (g)(1) as requiring each petitioner to identify, validate, and bear responsibility for the source of all other funds in the same NCE, whether from non-EB-5 or EB-5 owners. But if USCIS does make this extreme interpretation, then it would have to apply per the regulation to “ALL INVESTED CAPITAL”. The regulation does not justify applying 8 CFR 204.6 (g)(1) to non-EB-5 capital only, and using it just to hassle stand-alone petitioners, as has been occurring in I-526 Requests for Evidence issued since May 2019.

USCIS does not deny or revoke the I-526 for EB-5 investor A if EB-5 investor B in the same NCE is found to have a problem. Apparently recognizing that B’s identity and funds are not pertinent to A’s eligibility, USCIS does not ask regional center Petitioner A to identify EB-5 investor B or to validate B’s lawful funds – either in the Form I-526 or in RFE. How then is it reasonable in the standalone context for USCIS to interrogate EB-5 Investor A in RFE about Investor B, predicating A’s eligibility on B?

The basic unreasonableness and lack of justification in the request helps to explain why the Form I-526, I-526 Instructions, and published policy and filing tips say nothing about evidence to be provided by a petitioner to USCIS for other NCE investors and their source of funds. With no such evidence officially or publicly required, NCEs and petitioners have no way no know when filing I-526 what evidence may be requested, and adjudicators are left to individual caprice in issuing evidence requests. For example, from a sample of four RFEs issued to standalone investors in December 2019, one RFE asks for government ID or business registration document for each other NCE owner, one RFE asks for ID documents plus filed income taxes for each other NCE owner, one RFE asks for ID documents plus narrative description of business activities corroborated by “complete bank statements” for each other NCE owner, and one RFE does not ask about source of funds for non-EB-5 NCE owners. Is this not the definition of arbitrary and capricious processing? Even if such evidence were likely to be available to a petitioner post-hoc from independent parties not seeking immigration benefits. How do evidence requests that are unsupported in theory, unevenly applied, unprecedented in prior practice, impractical in fact, and undisclosed except in a few RFEs support program integrity? These RFEs clearly reflect an error that IPO should correct quickly in order to protect credibility and avoid litigation.

Suzanne Lazicki Lucid Professional Writing
(626) 660-4030 Cell, WhatsApp, Telegram
suzanne@lucidtext.com
2314 Washington Blvd., Ogden, UT 84401
www.lucidtext.com/

Filed under EB-5 Law & Policy

Regional center program authorization and USCIS stabilization

October 1, 2020 Leave a comment

Today begins Fiscal Year 2021. The good news is that the government remains funded and the regional center program remains authorized at least until December 11, 2020 thanks to the H.R.8337 – Continuing Appropriations Act, 2021 and Other Extensions Act signed early this morning by President Trump. Assuredly no one in government spared a thought for EB-5 this year. The regional center program regularly gets extended as part of the appropriations process unless someone goes out of the way to change it. Such out-of-the-way effort is unlikely considering other issues competing for attention in Washington, and considering that USCIS already accomplished by regulation the major “reforms” that previously motivated EB-5 legislation. Regional center program authorization might be drama-free, these days, if only the appropriations process were drama-free. My chart of regional center authorizations since 2016 does not reflect disputes about regional center authorization, but rather repeated breakdowns in the overall effort to keep the government funded. Each of the PLs in the chart represents an appropriations act or a continuing resolution on appropriations.

Under normal circumstances, we’d be starting FY2021 with funding for FY2021. As it is, we have a continuing resolution that extends the deadline on FY2020 appropriations for another few months, at which time Congress may manage a funding bill through September 2021 – or more likely, another continuing resolution or two. Meanwhile, I don’t expect legislative changes specific to EB-5 any time soon. (FYI this July 2020 IIUSA webinar gave a very interesting look behind the scenes of EB-5 advocacy for long-term authorization and program improvements, and insight into the lack of results.)

In addition to extension of regional center program authorization (in Division A on p 2 – see my Washington updates page for specific language if you’re interested), H.R.8337 includes the Emergency Stopgap USCIS Stabilization Act (in Section 2 Division D Title I, starting on p. 30). This piece of legislation cleverly responds to USCIS’s request for a Congressional bailout by calling on USCIS to raise funds the way it’s supposed to: by collecting fees for services. I avoided talking about this before it was passed, because the legislation could’ve been controversial. USCIS is apparently trying to get away from providing services to immigrants, and would prefer to be funded by the American taxpayer. The Emergency Stopgap USCIS Stabilization Act authorizes USCIS to sell immigrants a new product at an increased price; specifically, authorizing USCIS to expand and increase the fee for premium processing. The previous law at 8 U.S.C. 1356(u) had generally authorized USCIS to collect a premium fee of $1,000 for “employment-based petitions and applications.” The Emergency Stopgap USCIS Stabilization Act gives a more specific list of authorized benefit types (including specifically name-checking EB-1, EB-2, and EB-3 through the reference to “aliens described in paragraph (1), (2), or (3) of section 203(b)”), and raises the authorized fee to $2,500. EB-5 is not specifically mentioned in the new law, but also not excluded from premium processing by the original law. USCIS would apparently not need additional authorization from Congress to offer premium processing for EB-5, which falls under the long-authorized category of “employment-based petitions and applications.” However, the long-standing and likely-to-continue barrier in EB-5’s case has been USCIS, which has repeatedly declined to offer premium processing for I-526, I-924, or I-829. (For a recent example, see p. 6 of Sarah Kendall’s remarks at the October 29, 2019 IIUSA industry forum.) USCIS must guess that 99.9% of EB-5 applicants would take the service if offered, making the service difficult to deliver.

I’ll be very interested to see how USCIS responds to this legislation. The new law authorizes but does not compel USCIS to expand and raise fees for a popular discretionary service. Will USCIS actually do this for the sake of budget-stabilizing new fee revenue? Or will the agency continue to sit back and not offer fee-generating services while still complaining to Congress about budgetary problems? Just this week, USCIS posted another statement on budget issues, this time responding to a preliminary injunction enjoining the new fee rule that would have taken effect and raised fees across form types starting October 2, 2020.

My favorite part of the Emergency Stopgap USCIS Stabilization Act is this paragraph at the end, with the welcome title “reporting requirements.”

SEC. 4103. REPORTING REQUIREMENTS.
(a) IN GENERAL.—Not later than 180 days after the date of the enactment of this Act, the Secretary of Homeland Security shall provide to the appropriate Committees a 5-year plan, including projected cost estimates, procurement strategies, and a project schedule with milestones, to accomplish each of the following:
(1) Establish electronic filing procedures for all applications and petitions for immigration benefits.
(2) Accept electronic payment of fees at all filing locations.
(3) Issue correspondence, including decisions, requests for evidence, and notices of intent to deny, to immigration benefit requestors electronically.
(4) Improve processing times for all immigration and naturalization benefit requests.

Filed under EB-5 Law & Policy

EB-5 Visa Availability in FY2021

September 24, 2020 17 Comments

October 2020 begins the government’s new fiscal year, which means a new set of annual visas available.

The October 2020 Visa Bulletin announces that that the annual limit for Employment-Based (EB) visas – normally 140,000 – will be approximately 261,500 for FY2021.

The quota for EB-5 (employment-based fifth preference) is 7.1% of total EB visas by law. So the EB-5 quota — which is approximately 140,000*0.071=9,940 in a normal year – will be approximately 261,500*0.071=18,567 for FY2021.

The country cap also shares visas on a percent basis – 7.0% to each country. So each country limited by the country cap can expect at least 18,567*0.07=1,300 EB-5 visas available in FY2021. China, the country with oldest EB-5 applicants, will theoretically get what’s left of 18,567 after deducting 2,600 visas for India plus Vietnam and however many rest-of-the world applicants can get I-526 approval and visa processing in time to claim visas (historically, under 4,000 visas).

What does this mean?

First, note that the extra employment-based visas available in FY2021 represent family-based visas that went unused in FY2020. 261,500 – 140,000 = 121,500, so we now know that 121,500 FB visas available in FY2020 were not issued, thanks to the combined effect of anti-immigration executive orders and consular closures. FB’s loss is EB’s gain. (I previously wrote a guest article explaining how the visa allocation process works, and anticipating the extra visas.)

[10/1/2020 UPDATE: Note that the updated version of the Heroes Act (coronavirus relief bill) passed in the House on 10/1 includes language in Division T Title I (PDF p. 2023-2024) that would change the allocation of unused visas for FY2021 and FY2022, returning family-based visas to the family-based category. This Democrat-centric bill currently has no chance to progress further. But if the language in the House bill did become law, then EB-5 would go back to expecting no more than 9,940 visas available in FY2021 and FY2022, instead of benefiting from unused family-based visas.]

What extra FY2021 visa availability means in practice for EB-5 will depend on whether and where available visas can be issued. Keep in mind these three constraints on the visa process:

The number of visas available to EB-5. (This year will have almost twice as many as usual)
How many visas the consulates can issue. (Still unknown when consulates will resume normal operations. A number of consulates – for example in nearly-virus-free Vietnam – have never had much pandemic excuse to close, and yet still at minimal operations, judging by monthly reports. The consular processing forecast going forward appears to depend on political as well as pandemic trends.)
How many visas can be issued through adjustment of status. (This depends on how many EB-5 investors are in the U.S., how efficiently IPO can approve I-526 for those investors, and how efficiently USCIS can process I-485.)

The overall best case scenario is that consulates and USCIS will both go back to doing their jobs, and over 18,500 EB-5 visas will actually get issued in FY2021, equably to the oldest applicants both abroad in the U.S. That could shave almost one year off the expected visa wait times for Vietnamese and Indian investors, and deduct several years from the expected China wait time. (This benefit will be countered by however many expected FY2020 visas were lost due to consulate closures: we don’t know this number yet.)

Alternatively, if consular processing remains stuck while USCIS works efficiently in FY2021, then the few Vietnamese, Indian, and even Chinese EB-5 applicants able to use I-485 in the U.S. may skip their entire expected visa waits and get visas this year. Meanwhile, their compatriots abroad would face future wait times lengthened by the number of visas issued out-of-chronological order in the U.S. (and concurrently shortened by the number of visas issued above the average quota, if any).

Alternatively, if consular processing remains stuck and also USCIS continues operating at low volume, both for I-526 and I-485, then FY2021 may end with many of the technically-available EB-5 visas not having been issued to anyone. In that case, the unused EB-5 visas would be lost to EB-1 (as happened to any available EB-5 visas not issued in FY2020). In that case, EB-5 wait times (calculated based on the expectation of about 10,000 visas issued annually) would be lengthened across the board according to how far FY2020 and FY2021 fell below the expected average visas issued.

The Visa Bulletin is Department of State’s lever to channel visa demand. DOS knows more than we do about plans for consular operations, USCIS operations, and the number of people with pending I-526, pending I-485, and pending visa applications. So I try to read between the lines of the visa bulletin to understand what they know about constraints going forward.

Quoted from the October 2020 Visa Bulletin

E. MOVEMENT OF THE OCTOBER FINAL ACTION AND APPLICATION FILING DATES

Employment-based: All of the Final Action and Application Filing Dates have been advanced at a very rapid pace, in anticipation of the FY 2021 annual limit being approximately 261,500, an all-time high. The movement of these dates has been taken in consultation with USCIS Office of Policy and Strategy to accommodate processing plans for USCIS Offices during the coming fiscal year and to maximize number use within the FY 2021 annual limits.  Pending demand, in the form of applications for adjustment of status, and documentarily qualified immigrant visa applicants, is well below the estimated annual limit of 261,500. Adjustment of status applications filed early in FY 2021 are most likely to be adjudicated during the upcoming fiscal year. [UPDATE: at about noon on 9/24, this last sentence was deleted from the visa bulletin.]

F. VISA AVAILABILITY IN THE COMING MONTHS

EMPLOYMENT-based categories (potential monthly movement)

Employment Fifth: The category will remain “Current” for most countries

China: No forward movement
Vietnam:   Limited forward movement

The above final action date projections for the Family and Employment categories indicate what is likely to happen on a monthly basis through January.   The determination of the actual monthly final action dates is subject to fluctuations in applicant demand and a number of other variables.

“All of the Final Action and Application Filing Dates have been advanced at a very rapid pace” in anticipation of a record-high visa limit, says the Visa Bulletin Section E. Only that statement is not true for the EB-5 category. The October 2020 Visa Bulletin has exactly the same Final Action and Application Filing dates for EB-5 as the September 2020 visa bulletin (except for the note about visa unavailability in case the regional center program is not reauthorized). The visa bulletin further predicts little to no forward movement for the China and Vietnam EB-5 dates at least through January.

With so many more visas available to EB-5, why isn’t the visa bulletin moving EB-5 dates? One factor is this statement in Visa Bulletin Section E: “The movement of these dates has been taken in consultation with USCIS Office of Policy and Strategy to accommodate processing plans for USCIS Offices during the coming fiscal year and to maximize number use within the FY 2021 annual limits.” Normally, visa bulletin date movement is just to maximize number use within numerical limits. It’s interesting that the visa bulletin admits a (presumably conflicting) second factor: “to accommodate processing plans for USCIS Offices.” DOS realizes that EB-5 visa issuance will be constrained by how efficient USCIS is planning to be this year. (Also, intriguing that the visa bulletin does not mention consultation with consulates about their also-relevant processing plans.)

Another factor in future visa bulletin movement: past visa bulletin movement. DOS already advanced the EB-5 Final Action and Application Filing dates very significantly in FY2020 to try to maximize visa usage under the consular processing constraint. The dates jumped in 2020 to August 2015 for China and August 2017 for Vietnam, which released a significant amount of visa demand. But then consulates all-but-stopped issuing visas, so that demand released by past visa movement is probably largely still waiting now for final action. Assuming consulates get back on track in FY2021, they may have enough EB-5 demand already to keep them busy for awhile due to constraints in 2020. Also, the fact that USCIS will now allow I-485 to be filed based on Chart B in October 2020 (while it had used Chart A since April 2020) opens up some additional visa demand for the new year. The EB-5 visa bulletin dates will only have to really jump forward for EB-5 if consular processing remains blocked indefinitely by the pandemic/politics, and the visa bulletin effectively just becomes a lever for adjustment of status demand.

This sentence from the visa bulletin Section E is also significant: “Adjustment of status applications filed early in FY 2021 are most likely to be adjudicated during the upcoming fiscal year.” [UPDATE: And even more significant: the visa bulletin was revised about seven hours after posting to delete this sentence.] The sentence suggests that DOS anticipates a good year of EB-5 visa availability for adjustment of status. Besides the increased visa quota, this could reflect predictions about limited visa demand from consular processing and/or limited volume of AOS applicants possible in light of I-526 circumstances. [The fact that the sentence was subsequently deleted suggests that USCIS called DOS to complain about representations regarding likely adjudication performance.]

For investors born in Mainland China (and people advising Chinese investors and planning redeployment), I do have a new visa timing analysis ready for China. It’s customized by quarter based on I-526 receipt data, and models scenarios around the I-526-to-visa ratio and potential range of future visa availability for China. But it’s complicated, with the number of variables involved. I’m thinking I’d better do something like a webinar or individual Zoom calls to talk through the data and scenarios, rather than just send a heavy Excel file with a book of comments. Please email me at suzanne@lucidtext.com if you are interested in my timing analysis service for China and have suggestions about the delivery and payment method that would work for you.

Investors born in Hong Kong, I still do not have news. But I notice that the October 2020 Visa Bulletin still just has the column title “CHINA-mainland born” in Chart A and Chart B, and mentions no limits for Hong Kong. So it seems to be business as usual, so far. The DOS U.S. Visa News page and the Hong Kong Consulate Immigrant Visa page have yet to interpret the Hong Kong executive order.

The employment-based visa backlog and wait times continue to be an issue of common concern, thanks to on-going lobbying around the Fairness for High-skilled Immigrants Act. I’ve written about this several times over the years, but will discuss the country caps again as time permits.

And a reminder of my PayPal link, which gives opportunity to support the effort behind this blog. As the EB-5 industry changes, your contribution will help preserve this space for in-depth, unbiased, ad-free, and freely-available EB-5 reporting.

Filed under EB-5 Statistics

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EB-5 Updates

Analyzing potential changes to EB-5 visa availability

Preparing for the Regional Center deadline June 30, 2021

FY2020 Q4 EB-5 Form Data, Mayorkas Nomination, Backlog for China 2015

FY2020 Q4 EB-5 Form Data

Mayorkas Nomination

China 2015 Backlog and Visa Bulletin Movement

Ombudsman Meeting Input

New EB-5 Q&A from USCIS

2/3 Government Affairs Webinar Invitation

EB-5 Outlook 2021: questions about legislation and reauthorization

Stabilizing the EB-5 Program

I-526 Processing Status

Fairness for High-Skilled Immigrants Act

Interpreting November 2020 EB-5 Visa Availability Predictions from Charles Oppenheim

Are EB-5 applicants from Hong Kong now considered in the same category as Mainland China?

When will consular processing resume for EB-5 visa applicants?

What’s the latest news about visa numbers issued and available?

Is the government willing or able to issue more EB-5 visas through adjustment of status, to compensate for ongoing limits on consular processing?

What movement can we expect from the Visa Bulletin in FY2021?

How can I interpret the EB-5 visa wait time estimate?

Does Charles Oppenheim overestimate or underestimate actual EB-5 wait times?

FY2020 Q3 Processing Data

Report on Nov 2020 IPO Non-Engagement

What is normal I-829 processing?

What does the report mean?

Alternate data for I-829 processing times

The Law

The Public Law 107-273 Saga

EB-5 process illustration (Visa Bulletin questions)

AAO decisions on source and path of funds appeals

Assessing EB-5 TEA Qualification (online tools)

Source of all invested capital

Regional center program authorization and USCIS stabilization

EB-5 Visa Availability in FY2021

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