An Open Letter to Kevin Muck at IPO about I-526 data and avoiding EB-5 backlogs


Dear Kevin Muck,

You introduced yourself in the October 2022 EB-5 stakeholder meeting as I-526 Division Chief at IPO, with ten years of experience as an IPO economist preceded by eight years of service at the Bureau of Economic Analysis.

With your background and status, you should be capable and informed about the EB-5 process. But you said something ignorant and dangerous in today’s EB-5 stakeholder engagement.

A question was asked about reporting I-526/I-526E receipt data by TEA category/country, for the purpose of monitoring and avoiding backlogs in the new TEA categories. You responded that stakeholders should consult the Visa Bulletin, and see that the current Visa Bulletin reports TEA categories as “current.”

Think about it, Kevin. Do EB-5 backlogs not exist until they appear at the visa stage/in the visa bulletin? Do you believe that someone filing I-526E today gets visa availability based on the dates in today’s Visa Bulletin?

If you think that, try to look in the face of an Indian who filed I-526 in December 2020, and say “You didn’t need to know about the 2,300+ other Indian I-526 we already had on file at USCIS in December 2020, but didn’t disclose except through FOIA years later.” Try to tell him: “The December 2020 visa bulletin when you filed I-526 said that India EB-5 was current so obviously you were good to go — no backlog for you to worry about when you invested! The visas available to India back when you filed I-526 must still be available to you now, right? Oh… wait… you can’t actually apply for a visa now because India EB-5 now shows as backlogged to mid 2018 in today’s visa bulletin. But how could anyone have guessed? Those visa bulletin dates appear out of nowhere! Surely nothing to do with the number of Indians who filed I-526 in 2018/2019, or our rate of adjudication! Surely IPO was right to ignore Suzanne when she wrote over and over to the IPO Customer Service Mailbox, begging for backlog-relevant I-526 data to enable backlog/wait time prediction! Why would anyone need to ask how many people are entering and lingering in the back of the queue at USCIS, when the Visa Bulletin reports conditions just fine at the terminus of the queue at Department of State?”

Think about it: in a situation where unlimited tickets can be sold for limited seats, why might prospective ticket buyers possibly want to inquire about how many tickets have already been sold?

In a situation where I-526 filing numbers turn into future priority dates for visa issuance, why might anyone possibly want to ask about filing numbers? Do you say — sorry, just wait ’til you all reach the visa application stage and then find out from the visa bulletin?

Kevin Muck, think about today’s prospective investor from China who is considering EB-5 investment with a rural project. With the 20% rural allocation and 7% country cap, that investor can count certainly on competing for one of about 140 visas per year (about 10,000*20%*7%) – anything above that depends on the unknowns of current/future rest-of-world demand and carryover timing. With such limited availability, why might that prospective investor want to know how many Chinese have already filed I-526 for rural projects, whether 80 or 800? Why could that prospect want timely data to show whether/when I-526 volume overall is sufficient to max out the category and activate country caps once the demand reaches the visa stage? Why might she want the receipt data necessary to estimate whether the rural queue already formed at the I-526 stage is of a size to take two years or 10 years to make it past the visa window? And it’s not only investors who want to estimate their investment and immigration horizon at the time of investment — issuers and projects and regional centers require this for their planning as well. And the government also has an interest.

Think about it: what’s the word for soliciting investment with an incentive that might not actually be available? When the U.S. government offers an investor visa incentive, at the same time making it impossible for the investor or issuers to estimate visa availability at the time of investment, I’d call that fraud by the government. It rests on IPO to keep the U.S. government out of such embarrassment by reporting on the I-526 filings that drive EB-5 visa demand and availability.

I have requested this so many times from USCIS, but I know your name and your face now, Kevin Muck, and the size of your salary, and I appeal to you personally. Now that you’ve applied your economist brain to the situation and realize the importance of this data for program integrity, please help make it happen! Here is the report that we need to have USCIS start publishing, at minimum quarterly and at minimum with data no less than three months old. (Even better if we can get monthly reports with data only one month old, but truly anything will be an improvement over current blank silence. USCIS already provides monthly reporting internally to the visa bulletin working group, so adding public reporting should not be a great reach.)

Number of I-526 receipts by country and category for the period ______    
 Rural TEAHigh Unemployment TEAInfrastructure TEAUnreserved
All countries    

*Note: It seems that we need only these countries in the report, since the Federal Register notice RIN 1400–ZA27 clarified that the per-country limit is only triggered when demand exceeds 7% of all FB and EB visas. Which historically means that only China, India, Vietnam, Mexico, Philippines and Dominican Republic are in the country cap danger zone overall, and the last two can safely be disregarded for this report since they’ve never been remotely significant in EB-5.

That’s all for now Kevin. Thank you for putting yourself out to be faced with challenges like these. I depend on you to talk USCIS out of its practice of concealing I-526/I-526E filing information.



(For more background and explanation, see also AIIA’s well-researched article How does the Visa Bulletin Work? And for such EB-5 demand data as I have managed to collect by hook or by crook, see my regularly updated Processing Data page and the Excel file I keep linked to the top of my EB-5 Timing Page.)

April 25, 2023 Stakeholder Engagement

The April 25, 2023 “EB-5 Stakeholder Engagement” had a Microsoft Teams webinar format, with IPO staff speaking on video and a chat box where the public had a chance to type questions viewable to admins only. I cannot disprove the hypothesis that all of us were sitting there watching pre-recorded video, and typing questions into the void.

The engagement managed to fill 1.5 hours with exactly no significant content. I won’t publish a recording. The meeting was 95% technical clarifications on Form I-956K – the regional center promoter registration form that functions to feed paper to the black vaults of USCIS, which neither adjudicates the form nor (at least so far) makes it actionable by divulging form compliance or non-compliance to prospective/current investors or regional centers. If USCIS cares about Form I-956K and the additional instructions and technical clarifications that they provided on today’s call, then they can publish said instructions and clarifications somewhere findable by the public.  USCIS announced that no transcript or talking points would be provided for today’s call. I will not waste time transcribing information that USCIS apparently does not consider reliable enough to record or publish themselves.

Alissa Emmel kicked off today’s engagement by announcing that speakers would not address two significant issues that the engagement was called in January 2023 to address: the critical questions of investment period (“the new requirement under the EB-5 Reform and Integrity Act of 2022 (RIA) that capital must be expected to remain invested for at least two years”) and regional center operations (“in particular those who wish to withdraw from the program and terminate their status and those who do not wish to solicit investments for new projects under the RIA”).  Both of these issues are hugely consequential. USCIS’s answer on the investment period will make the difference between whether Chinese, Indians, and Vietnamese who risk an EB-5 investment today can expect to exit the investment after as little as two years (the artificial sustainment period apparently in the Reform and Integrity Act) or as long as over a decade (the time it could take investors to reach the I-829 stage considering current processing time/volume trends and the visa backlog risk in categories with small per-country visa availability under TEA percentages and country caps). Regional centers who love the profits of redeployment and investors who hate the risks of redeployment both snowed USCIS in conflicting passionate feedback on this topic. (For example see IIUSA’s letter here, the joint industry letter here, and AIIA’s letter here.) I’m guessing that USCIS first delayed the stakeholder meeting (originally scheduled for March) and then finally avoided the topic today because they’re rationally afraid that whatever they say about the investment sustainment period will immediately occasion a lawsuit. The Regional Center operations questions are less divisive among EB-5 stakeholders, but a huge open question with USCIS. Are thousands of good faith investors about to start seeing their I-526 and I-829 denied and their residence status revoked through no fault of their own, and for no fault in the investment or job creation, but simply because their good faith regional center sponsor decided to go passive (instead of choosing to solicit new investment under the Integrity Act, with compliance steps specifically relevant to soliciting new investment)? It’s dreadful that this question remains open.  

In addition to avoiding two of the three agenda topics previously announced for the engagement, the IPO speakers also provided no update on IPO operations or staffing, no update on form processing or procedures, and no estimated delivery dates for the many initiatives IPO ought to have in hand, including policy publication, regulations, timely processing study, website updates, or digitization. At the same time, the speakers all put on a good face, as if they believed they were doing a good job, engaging substantively, and answering questions. Surely it’s not possible to be that clueless and incompetent? Could I at least have the hope of believing that today’s non-engagement was an act of intentional malice by people who know what they’re doing? Or maybe we and the IPO speakers on today’s call are equally victims of a system that paralyzes communication by subjecting every decision and talking point to a thousand steps and checks.

RIA Implementation Status, one year later

On March 15, 2022, the EB-5 Reform and Integrity Act of 2022 (RIA) became law as part of the Consolidated Appropriations Act, 2022 (Public Law No: 117-103).  One year later, how far have we come? How much of the law has been implemented?

The following bullet points give status as of March 31, 2023 for steps that need to be taken to implement RIA.

Updating policy, forms and guidance based on the new law

  • USCIS Policy Manual: Incomplete. On October 7, 2022, USCIS updated only the introductory Chapters 1-2 of the Policy Manual EB-5 section 6G, while EB-5 Chapters 3-6 remain untouched. The chapters still still not updated with RIA-compliant policy cover I-526 adjudication, I-829 adjudication, and regional center designation and reporting requirements.
  • USCIS website: Incomplete.  Some new EB-5 content has been added to the USCIS website over the course of the year, and some outdated content remains in the mix. It’s still impossible to go to the USCIS website to find out which regional centers are approved or active under the new law.
  • EB-5 forms: In Process. All EB-5 forms required by the new law have been published or revised but remain subject to change. (Indeed, new versions of all I-526 and I-956 were just published today.) USCIS has yet to respond to (and for I-956, even to post) the second round of public comments to the Federal Register on I-526E and I-956.

Prescribing regulations required by the new law

  • Regulation for parameters on capital redeployment: Not done. (RIA does not state a deadline for this regulation.)
  • Regulations prohibiting foreign involvement in a regional center: Not done. (The RIA deadline, 270 days after the date of enactment, has passed.)
  • Regulation to ensure that EB-5 capital is not used on publicly available bonds: Not done. (RIA does not state a deadline.)

Monitoring and enforcing regional center compliance with new requirements

  • Clarify how RIA requirements apply to previously-approved RCs not active under RIA: Not done.  The EB-5 stakeholder meeting previously scheduled for March 20, then delayed to April 25 is slated to address this question. (UPDATE: The April 25 meeting did not after all address expectations for regional centers with pre-RIA but not post-RIA investors.)
  • Review and approve regional center compliance procedures: Status Unknown. USCIS has not reported any decisions on I-956 Regional Center Applications. (We hear anecdotally about approvals received, but USCIS does not report I-956 approvals or denials on the USCIS Regional Center page or the USCIS Immigration and Citizenship data page.)
  • Vetting and background checks of persons involved with regional centers: Status Unknown. USCIS has not reported any decisions on I-956H forms.
  • Review Regional Center Annual Statements and Certifications: Not done.  Form I-956G were not filed for 2022 because “USCIS is extending this deadline until we publish guidance that clarifies the requirements of these forms.”  Such guidance has yet to be published.
  • Review regional center projects: Status Unknown. USCIS has not reported any decisions on I-956F Applications for NCE approval.
  • Review registrations by direct and third party promoters: Status Unknown. USCIS has not reported any decisions on I-956K registrations, and has not made any lists publicly available.

Implementing visa availability changes

  • Reshuffle visa availability to reserve visas for new TEA investment: In process. The Visa Bulletin and Annual Report of the Visa Office show new visa categories as required by RIA. Zero reserved visas were issued in FY2022, due to slow USCIS processing.
  • Carryover of unused reserved visas: In process. The FY2023 Annual Limit report says cryptically “The employment chart (above) does not include numbers carried over from the previous fiscal year in the EB-5 category.” (UPDATE: the April 26, 2023 DOS/AILA Liaison meeting (question 22) confirms intent to carry over visas.)

Other requirements

  • Timely Processing Fee Study: Not done. (RIA gave a deadline of 1 year from the date of enactment to complete a study of fees levels required to achieve timely processing goals, and this study has yet to be published. The USCIS Fee Study does not address timely processing for EB-5.)
  • Announce appropriate channels of communication: Done.  The bottom of the EB-5 Support page has been updated with Channels of Communication.
  • Publish Log of communications: Not done. The FOIA page for USCIS does not show a log of communications with Congress regarding EB-5.
  • Transparency regarding Publication of Information: Mixed. (For example, we know that USCIS is having court-ordered quarterly meetings with litigation plaintiffs. So far one set of meeting minutes has been published, and publication happened more than 30 days after the meeting.)

Other questions

  • Other Rule-Making: Not done. In response to I-956 comments in the Federal Register, USCIS indicated in December 2022 that it could not yet answer questions about but “may consider rule-making to address” each of the following issues:
    • Evidence to establish regional center geography;
    • Whether regional center policies and procedures need to be provided or only described;
    • What circumstances require an I-956F amendment;
    • Whether stand-alone investors need to use fund administration;
    • The definition of an infrastructure project;
    • Whether regional center annual reports need to cover funds raised prior to RIA.
  • Implementing the RIA change to the sustainment requirement and investment period: Not done, but the USCIS April 25 stakeholder meeting is slated to discuss the topic. (UPDATE: USCIS stated at the 4/25 meeting that they were after all “unable to discuss” the topic yet, while “USCIS is engaged in ongoing efforts at the immigrant investor program office and across the agency to ensure that when we do have updates, we’re equipped to provide the EB-5 stakeholder community with clear guidance.”)

FY2022 Annual Report of the Visa Office for EB-5 visas issued by country

The Department of State has finished publishing its Report of the Visa Office 2022. The report covers EB-5 visas issued from October 2021 to September 2022, with breakdown by country of origin, path (consular processing or status adjustment), and category (direct, regional center, TEA, reserved, unreserved). I’ve been waiting anxiously for the report, wondering about visa wastage, Integrity Act implementation, and impacts on the visa backlog and EB-5 visa wait times for China, India, and Vietnam.

This post comments on highlights, followed by data tables summarized from the reports.

FY2022 EB-5 Visa Issuance and Wastage

USCIS actually issued 10,885 of the unusually-high 19,987 EB-5 visas available in 2022.   Of the 9,102 EB-5 visas that didn’t get issued in FY2022, 6,396 couldn’t have been issued because segregated in newly-created set-aside categories. (The unused set-asides should carry over in future years, though the FY23 visa limits report doesn’t show the carryover.) The remaining 2,706 unused EB-5 visas in FY2022 were permanently lost to EB-5. (FY2022 is still much better than FY2021, when EB-5 lost 15,673 total visas, and FY2020, when EB-5 lost 7,498 visas.)

Visa wastage particularly affected countries with mostly regional center applicants using consular processing. For example, South Koreans got 695 EB-5 visas in 2019 (the most recent “normal” year) but only 396  visas in 2022 (86% by consular processing), despite the fact that 909 South Korean EB-5 applicants were ready and registered at the National Visa Center at the start of 2022. Hong Kong likewise suffered, with only 142 EB-5 visas issued in FY2022 despite 866 Hong Kong applicants ready at NVC at the start of the year. Meanwhile Indians, many adjusting status in the U.S., managed to get a record 1,381 visas in 2022 – even more than technically available to them under the year’s unreserved visa limit.

Reasons for FY2022 EB-5 Visa Wastage

EB-5 visa issuance in FY2022 was as low as it was largely due to the unfortunately protracted regional center program expiration, and the policy that prevented visas from being issued to regional center applicants from October 2021 to May 2022. (I wish that policy could be litigated on behalf of the over 18,000 EB-5 visas lost during the expiration.) Monthly visas statistics show that all regional center visas issued in FY2022 were packed into just four months: June to September 2022.  

The government had the entire year to issue direct EB-5 visas, but only issued 621, likely constrained by low demand (i.e. few direct I-526 filed and even fewer making it through I-526 processing to the visa stage). By comparison, 414 direct EB-5 visas were issued in the last normal year of FY2019.

Consular processing numbers were also depressed overall compared with FY2019, reflecting on-going struggles with post-COVID backlogs. For color on why the steps in consular processing remain so slow and problematic, see questions and answers in the Department of State/AILA Liaison Committee Meeting February 9, 2023, the NVC Immigrant Visa Backlog report (look at trends in the number of interview appointments, and compare appointment volume with backlog size), and the October 2022 Update on Worldwide Visa Operations. Those in or approaching consular processing should be aware of the NVC Timeframes page, with information on process status and times. The bright side is that consular problems affect not only EB-5 but also family-based visa issuance, and EB-5 benefits in 2023 from a share in FB visas that went un-issued in 2022 (as reflected in 2023’s unusually high EB visa limit).

High Volume of EB-5 Status Adjustments in FY2022

EB-5 visa issuance in FY2022 was as high as it was thanks to an unprecedented high number of status adjustments (37% of the total, as compared with 17% in 2019). For example comparing 2022 with 2019 visa issuance, China got fewer visas last year through consular processing but five times as many visas through status adjustment. 

The unusually high AOS numbers reflect the fact that USCIS got political pressure and made herculean efforts at the end of FY2022 to step up work on employment-based status adjustments, even as consular processing continued to struggle post-COVID.  

Direct EB-5 (and the visa bulletin even briefly becoming Current for China direct EB-5) did not contribute much boost. China ended the year with only 199 direct EB-5 visas issued – not much higher than usual, and not explaining the unexpected thousands of Chinese who adjusted status in 2022.

RIA Implementation, Reserved Visas, and Country Caps

Report of the Visa Office 2022 does segregate EB-5 visas into “5th Unreserved” and “5th Set-Aside” categories, reflecting changes to visa availability made by the EB-5 Reform and Integrity Act enacted March 15, 2022. Of course, no visas were issued in 2022 in the “5th Set-Aside” categories, since no applicants who filed I-526 after March 15, 2022 could have reached the visa stage in time. And according to Department of State interpretation, all EB-5 applicants with pre-March 2022 priority dates can only now qualify for a visa in the new 68% unreserved category, regardless of whether they invested in a TEA that matches new definitions. (I think this interpretation can and ought to be challenged, at at least one lawsuit by DRVC is challenging it, but it’s the fact for now.)

In theory, country caps further restrict availability within each category. Thus pending applicants from any one country can only expect up to 7% of the 68% unreserved EB-5 visas (with “otherwise unused” unreserved numbers going to the oldest priority dates i.e. Chinese).

In 2022, this theory held true for Vietnam but not for India. While both countries have excess demand for unreserved visas, and large NVC backlogs, the government in fact issued 815 EB-5 visas to Vietnam (about 7% of unreserved EB-5 visas) and 1,381 EB-5 visas to India (about 7% of total EB-5 visas). Hmmm…

Was this different treatment of Indians and Vietnamese an oversight, with the government remembering the unreserved limit in the new law for Vietnam while forgetting it for India? 2022 was naturally confusing for the Visa Office, which had to deal with a mid-year law change and leadership change. Or did many Indians get lucky just because they happened to be in the US, unlike most Chinese and Vietnamese EB-5 applicants with earlier priority dates? I wonder if maybe Indians got assigned “otherwise unused” numbers at the end of the year that should’ve gone by right to earlier Chinese priority dates, but practically couldn’t because the consulate in China lacked capacity to hold more interviews in time while the California Service Center had capacity to complete more I-485 and help avoid wastage. (I also wonder if a difference between consular and USCIS capacity to issue visas at the end of the year could explain the unusually high number of Chinese regional center applicants who were able to adjust status in FY2022 — more applicants than one would expect from priority date order.)

Country Diversity

FY2022 was similar to previous years in terms of countries claiming the most EB-5 visas. As in 2019, the top users in 2022 were (in descending order): China, India, Vietnam, South Korea, Brazil, and Taiwan. Meanwhile, Mexico, Canada, Russia, and Iran moved a few notches up the list in 2022, while Venezuela, South Africa, Great Britain, and Japan moved a few notches down. I was surprised mainly by the number of Canadians on this year’s list (why, Canada?) and Iranians (considering the often arduous source of funds path).

Visa Demand Context

For a reminder of the size of the visa queue before FY2022 visa issuance,  see the presentation by Charles Oppenheim for IIUSA in November 2021. At that time, Oppenheim estimated the EB-5 backlog (including applicants already registered at NVC and potential future applicants associated with I-526 pending at USCIS) at 57,253 visa applicants for China, 7,418 for India, 3,954 for Vietnam, and 18,054 for other countries  (see Slide 10).

Visas issued in 2022 reduced those queues by 6,125 visas to China, 1,381 visas to India, and 815 visas to Vietnam. (I assume that I-526 filings in 2022 didn’t grow the queues very much, unless it turns out that most of the 829 receipts last year came from Indians).  

The future wait times associated with that scary queue depend on (1) how many petitioners/applicants in the queue will ultimately give up/lose eligibility before they can clam a visa (likely a large number given the untenable wait times looming for Chinese and Indians near the end of the queue), and (2) how many EB-5 visas will be issued per year from now on, with the base case being 9,940 EB-5 visas * 68% unreserved * 7% country cap = up to 473 to applicants of each country. The actual number of visas available per-country in a given year can be significantly higher than the 473 base case based on carryover of family-based visas (as happened in FY2022 and happening again in FY2023 due to COVID-19), carryover of reserved visas (as should happen in 2024 and 2025 assuming law compliance and continued slow I-526 processing), and unreserved visas leftover after country caps (which should increasingly benefit China in coming years).  But even with the most optimistic assumptions on future visa availability, Chinese who filed I-526 from October 2016-March 2022 and Indians who filed I-526 from November 2019-March 2022 could face five or more years of waiting just for conditional permanent residence. Or would face that wait, except that it exceeds what many applicants (not to mention their RCs, projects, and investments) can practically bear, predictably leading to many queue-shortening drop-outs/failures. Meanwhile, new investors in reserved categories have to sweat over limited availability (with just 20%, 10% or 2% of visas available in each new lane, further restricted under the 7% country cap) and guessing the time for I-526 filings to invisibly build and max out that limited availability. I’ll write more about unreserved and reserved visa availability and wait time issues in separate articles.

The bottom line is that EB-5 suffers from a supply problem. EB-5 needs more visa numbers in order to accomplish what regional centers, investors, and public policy all require: a stable and predictable immigration opportunity that can accommodate new investors plus prevent a despairing rush for the exits for past investors/investment.

Tables based on the Annual Report of the Visa Office

EB-5 Integrity Fund FAQ, with notes on regional center status and investment period

Today, USCIS sent out an email alert with the title USCIS to Start Collecting Fee for EB-5 Integrity Fund, published a new EB-5 Integrity Fund page on the USCIS website, posted a Federal Register notice with information about the Integrity Fund, and created a new page for EB5 – Annual Fee for Regional Center at  

We’ve known that annual regional center fees were coming, since Section 103(b)(J) of the EB-5 Reform and Integrity Act (RIA) created this new requirement. But we’ve been waiting for USCIS to clarify questions around the fee, including how and when to pay it, who qualifies as the “each regional center designated under subparagraph (E)” who needs to pay the fee, and who counts as “investors in the preceding fiscal year in its new commercial enterprises” for the purposes of calculating how much to pay.

Here are answers gathered from the documents published today by USCIS.

Who needs to pay the new EB-5 Integrity Fund fee, and when?

USCIS interprets RIA to mean that every regional center, regardless of when designated and regardless of when or if it sponsored investors, needs to make its annual Integrity Fund payment of $10,000 or $20,000 to USCIS between tomorrow and March 31, 2023. The fee due this month will apply to FY2023. (The next annual fee, for FY2024, will then come due in October 2023.) The Federal Register notice indicates that USCIS expects that all 630 previously designated regional centers will pay the fee, including those with no investors at all. The announcements give no indication that USCIS considered exceptions for regional centers that were not designated under the new law and do not have investors under the new law.  

What does the USCIS fee policy imply about USCIS treatment of previously-approved regional centers?

The fee policy apparently takes for granted that when RIA created a fee requirement applicable to “each regional center designated under subparagraph (E),” RIA did not actually specifically mean RIA subparagraph (E), but also the 1993 law Section 610.  

USCIS has yet to designate any regional centers under subparagraph (E) by approving I-956 applications. An unknown number of previously-approved regional centers have filed I-956 and chosen to solicit investors under RIA. This creates a grey area for the many regional centers that were only approved and only raised investment under the old law.  USCIS admitted as recently as October 2022, in meeting with the litigation plaintiffs, that “USCIS has not determined what will happen to regional centers that choose not to file Form I-956” and “whether any of the RIA requirements apply to them.”

But whoever drafted today’s USCIS fee policy did not recognize a grey area. The policy simply assumes, without argument or explanation, that new requirements applicable to regional centers designated under RIA also apply to regional centers previously designated under Section 610 of the Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations Act, 1993. The drafters of the fee policy apparently did not consider the arguments in my Comment on the RIA impact on pre-RIA Regional Centers and investors.

What will happen to any regional center that does not pay the EB-5 Integrity Fund fee by March 31, 2023?

On May 31, 2023, USCIS will start to send out Notices of Intent to Terminate to every regional center whose fee was not received on-time. (For some RCs, the NOIT may be the first they hear about the fee requirement. USCIS explained that today’s publications will be the only notice, and that USCIS will not individually notify or send invoices to regional centers.) A regional center’s designation will be terminated following the NOIT, unless the regional center can document that it did indeed submit the full required fee amount by the deadline of March 31, 2023.

The termination threat is a concern primarily because the new law defines devastating investor consequences from regional center sponsor termination (as further discussed in my previous post). INA 203(b)(5)(M) stipulates that I-526 petitions will be denied and even conditional permanent residence status terminated upon regional center termination. And the escape route offered in (M) is only theoretical, since USCIS permission is no guarantee that a good faith investor or NCE can – in fact – have a viable option to associate with another regional center. The termination consequence places great weight on today’s fee announcement.

What is the required amount of the EB-5 Integrity fee? What does the fee policy imply about who’s an investor, and what’s the investment period?

RIA states that the required fee for a regional center depends on the regional center’s number of investors in the previous year  – with the $20,000 annual fee reduced to $10K for “each such regional center with 20 or fewer total investors in the preceding fiscal year in its new commercial enterprises.”

But who counts as “investors in the preceding fiscal year” for the purpose of fee calculation? The statutory language could justify a reading as limited as “people who invested and filed I-526/I-526E in the previous fiscal year under RC sponsorship” to as broad as “people at any immigration stage whose investment was still in some sense under RC custody in the previous fiscal year.” The USCIS fee policy published today in the Federal Register presents this reasoning:

  • A possible interpretation of “investor” is “someone still in the investment period”
  • “Investment period” means the period from I-526 filing through the point of I-829 filing, on the authority of a 2021 blog post by Canadian financial professional Rupy Cheema of EB5 Diligence. (I don’t know whether to laugh or cry at this evidence that the USCIS Office of Policy and Strategy was apparently not sweating over statute, regulations, or precedent decisions or its own Policy Manual but just casting about the Internet to find a policy for the EB-5 investment period, but props to EB5 Diligence for catching OPS’s eye and earning the footnote citation in the Federal Register notice!)
  • Since Rupy said in 2021 that the investment period goes approximately from I-526 filing to I-829 filing, and since USCIS has ready data for number of I-526 and I-829 filings while other calculations would be hard, therefore USCIS intends to estimate “total investors in the preceding fiscal year in its new commercial enterprises” as equal to the total number of pending and approved I-526 at year-end less the total number of I-829 filed at any time by principals. With the qualification that “USCIS adjudicators retain discretion to evaluate the Integrity Fund fee due and the number of investors on a case-by-case basis, accounting for any other facts or evidence in the record in the totality of the circumstances, including any evidence provided by a regional center that believes it has greater or fewer total investors.”

This is a sober recital of the content of the Federal Register notice.  What can we expect next from the Office of Policy and Strategy?

Everyone involved in the huge fight over defining the “investment period” (on the regional center side and investor side) will be interested in this paragraph from the Federal Register analysis:

“USCIS considered generally counting only the Forms I-526 that were filed within two years of the applicable period used for determining the EB-5 Integrity Fund fee given the expected two-year minimum timeframe for the investment, or sustainment period, under the 2022 Act. INA section 203(b)(5)(A)(i); 8 U.S.C. 1153(b)(5)(A)(i). However, that would likely be underinclusive given that many investors are actively in the process of investing (i.e. not yet fully invested) when they file their Form I-526 petition as permitted under applicable requirements and, additionally, would not align with the sustainment period for those who filed prior to the 2022 Act, which runs approximately to the point of the Form I-829 filing, regardless of when they filed their Form I-526 or made their investment.”

Do we have a chance to provide feedback on the fee policy?

The Federal Register notice states that “USCIS is imposing this fee without soliciting public comment prior because this is a general statement of policy and an interpretive rule exempt from notice and comment procedures.” The notice claims that “The statutory provision that requires the $20,000 and $10,000 fees contains little ambiguity for USCIS to resolve or explain.” (And this, after the notice grappled with ambiguities around the investor count and overlooked the major ambiguity of regional center applicability.)  I will update this post if I learn of a chance to respond with questions and concerns.

RIA impact on pre-RIA Regional Centers and investors (comment)

The following is the comment related to Regional Center Operations that I submitted to USCIS in advance of the EB-5 engagement on March 20, 2023. (The comment deadline is 4 ET today.) I approached the question theoretically, and would love to hear more input from regional centers and investors who are personally affected. How can we best navigate the threat of termination and the burden of how to operate and maintain investor eligibility since passage of the EB-5 Reform and Integrity Act? (Note that the table below only reflects my interpretation/suggestion to USCIS. I do not know what policy USCIS will create or how USCIS will interpret and apply RIA.)

From: Suzanne Lazicki <>
Sent: February 10, 2023 8:44 AM
To: ‘’
Subject: Question: EB-5 Engagement March 20, 2023

Regional Center Operations: We will discuss issues related to regional center operations, in particular those who wish to withdraw from the program and terminate their status and those who do not wish to solicit investments for new projects under the RIA.


Regional centers that do not wish to solicit investments for new projects under RIA may and should still wish to retain their designation, for the sake of protecting their pre-RIA investors. Not that RCs have much practically to do for in-process past investors; the issue is that INA 203(b)(5)(M) now defines devastating investor consequences from regional center sponsor termination. (M) stipulates that I-526 petitions will be denied and even conditional permanent residence status terminated upon regional center termination. The escape route offered in (M) is only theoretical, since USCIS permission is no guarantee that a good faith investor or NCE can – in fact – have an option to associate with another regional center. Such an option depends on real-world factors outside the investor’s or USCIS’s control, including the existence of another regional center willing to take the burden under livable terms, a willingness by the terminated entity to transfer sustained investment to the sponsorship of a new RC, and documents that practically allow for such a switch. Investors originally sponsored by bad actor regional centers may be thankful for a prospect – however slim – to change sponsors upon USCIS termination. But the risky, uncertain prospect is hardly solace or protection for investors who already have a good sponsor responsibly managing their investment.

If USCIS starts to terminate regional centers for no fault except declining to raise new funds under RIA, the result will be loss of eligibility among EB-5 investors due to RIA – an outcome that RIA sought to avoid in principle with Section 108 Protection from Expired Legislation. 

Regional centers wishing to retain designation for the sake of shepherding pre-RIA investment and projects, not for the purpose of soliciting new investment, could reasonably be held to RIA requirements that apply to shepherding investment, and not held to RIA requirements specific to soliciting investment.

Practically, this means that shepherd regional centers should continue to report on their management of EB-5 investment and be subject to penalties for reasons related to fund management, but should not have to file I-956 and I-956F, or to complete the portions of I-956G that are indexed to I-956 and I-956F and to requirements specific to capital raising activities.

The following table considers which requirements created by RIA are specific to raising and deploying EB-5 investment, and thus naturally not applicable to RCs/NCEs that raised and deployed EB-5 funds prior to RIA and will not continue such activity after RIA.

Table 1. Applicability of RIA requirements to Regional Centers not sponsoring new investors or projects under RIA

Section of INA 203(b)(5)Comment on how this requirement should apply to regional centers not sponsoring new investors or projects under RIA
(E)(iii) Establishment of a Regional Center, regional center proposalNot applicable. As clarified by the Settlement Agreement in the Behring litigation, the requirement to apply for regional center designation with I-956 is specifically “for the purposes of sponsoring new projects and new investors under the Integrity Act.” 
(E)(iii) Record Keeping and AuditsApparently applicable to regional centers with an on-going status as sponsor of investor petitions. As a practical matter, when auditing records on an on-going basis, regional centers should be held to record requirements that existed at the time when their annual reports were filed, and that apply to the petitions they sponsor (with adjudication standards largely following the law at the time of filing).
(F)(i-iii) Business plans for regional center investmentNot applicable. Form I-956F is only required for NCEs soliciting investors under RIA.
(F)(iv) Site VisitsApparently applicable to all NCEs and JCEs still in the job-creating stage.
(F)(v) Parameters for Capital RedeploymentApparently applicable on an on-going basis to EB-5 investor funds that must be maintained at risk.
(G) Regional Center Annual StatementsAn on-going reporting requirement would naturally apply to every regional center with EB-5 funds under on-going management. However, the specific content of the annual report is specific to the basis of regional center designation.  INA 203(b)(5)(G) lists out annual report content that is specifically forEach regional center designated under subparagraph (E)– with no mention of regional centersdesignated under Section 610 of the Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations Act, 1993. The content list for regional centers “designated under subparagraph (E)” naturally echoes the new Form I-956 and I-956F (which regional centers not seeking designation or new projects under RIA are not required to file), and covers content specific to RCs soliciting and deploying new investment. While INA 203(b)(5)(G) is silent on annual reporting for regional centers retaining designation under 610(b) and  not amending designation to sponsor new projects or investors under the Integrity Act, USCIS might reasonably request such RCs to continue to file I-924, which was designed based on 610(b) (or to create a version of I-956G that omits the content only applicable to regional centers who have filed I-956 and I-956F, and to soliciting funds under RIA).
(H) Bona Fides of Persons InvolvedNot applicable, since RCs not soliciting investment after RIA are not procuring any funding under the program as described by RIA. The statute specifically defines “persons involved” as “in a position of substantive authority to make operational or managerial decisions over pooling, securitization, investment, release, acceptance, or control or use of any funding that was procured under the program described in subparagraph (E).”  Funding procured prior to RIA was not proposed under subparagraph (E), but under the program described in Section 610 of the Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations Act, 1993. (And as a practical matter, regional centers cannot retroactively change the persons who were involved in pooling investment that was pooled prior to RIA.)
(I) Compliance with securities lawsNot applicable, since RCs not soliciting investment are not engaged in offers, purchases, or sales of securities, or in providing investment advice – the activities subject to securities law compliance. There is obviously no on-going need to certify compliance for activities in which an RC does not engage.
(J) EB-5 Integrity FundNot applicable, since this section calls for a fee to be collected from “each regional center designated under subparagraph (E).” It does not reference regional centers designated in Section 610 of the Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations Act, 1993.  As noted above and with reference to the Behring Settlement Agreement, a previously-approved regional center is only required to amend its designation under subparagraph (E)  “for the purposes of sponsoring new projects and new investors under the Integrity Act.” 
(K) Direct and Third Party PromotersNot applicable to RCs with no open offerings to be promoted to alien investors.
(N) Threats to the national interestApparently applicable to all designated RCs, with no reference to whether it was designated under subparagraph (E) or Section 610 of the Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations Act, 1993.
(O) Fraud, misrepresentationApparently applicable to all designated RCs, with no reference to whether it was designated under subparagraph (E) or Section 610 of the Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations Act, 1993.
(Q) Fund AdministrationNot applicable to regional centers that already deposited and deployed investor funds to capital investment projects prior to RIA, and are not raising any new funds to be deposited or deployed.

March 20–April 25 EB-5 Engagement Invite

3/14 UPDATE: The EB-5 engagement has now been postponed to April 25, 1-3 ET. Visit the invite page to register again. The postponement email said “We appreciate all the feedback and questions you submitted in advance and are very closely reviewing this helpful information.”

From: U.S. Citizenship and Immigration Services <>
Sent: January 30, 2023 1:00 PM
Subject: USCIS Immigrant Investor Program (EB-5) Stakeholder Engagement

USCIS Immigrant Investor Program
(EB-5) Stakeholder Engagement

Monday, March 20, 2023
1:30 – 3 p.m. Eastern

U.S. Citizenship and Immigration Services (USCIS) invites you to participate in a stakeholder engagement on Monday, March 20, 2023, from 1:30 to 3 p.m. Eastern.

During the first part of the engagement, USCIS will discuss three specific areas within the Immigrant Investor Program. 

The three topics are:

  1. Direct and Third-Party Promoters: A promoter should submit Form I-956K, Registration for Direct and Third-Party Promoters, before operating on behalf of any of the specified entities or promoting any offering under the EB-5 Regional Center Program. The promoter must submit Form I-956K separate from the Form I-956F, Application for Approval of an Investment in a Commercial Enterprise, to seek an approval of an investment in a commercial enterprise.
  2. Investment Period: USCIS will discuss the requirements for an immigrant investor to sustain their investment if they filed Form I-526, Immigrant Petition by Standalone Investor, before March 15, 2022, and the new requirement under the EB-5 Reform and Integrity Act of 2022 (RIA) that capital must be expected to remain invested for at least two years for those who filed an I-526 or Form I-526E on or after March 15, 2022.
  3. Regional Center Operations: We will discuss issues related to regional center operations, in particular those who wish to withdraw from the program and terminate their status and those who do not wish to solicit investments for new projects under the RIA.

We will then hold a Q&A to hear questions, comments, and individual feedback from stakeholders on these three topics. Although we are interested in receiving overall feedback about the EB-5 program, we would appreciate focusing the Q&A portion of the engagement on the topics above.

We will not address case-specific questions, questions outside the scope of the engagement, or issues under active litigation or likely to be litigated. We are committed to public engagement, and sessions like this provide valuable feedback as we work to improve our programs. Participation in this engagement will be virtual.

Questions for consideration:
If you would like to submit a question in advance on one of the three topics we will be covering during this engagement (direct and third party promoters, sustainment, or regional center operations), please send your question to the Public Engagement mailbox at with the subject line “Question: EB-5 Engagement March 20, 2023” by 4 p.m. Friday, Feb. 10.

To Register:

1. Visit our registration page.

2.  You will be asked to provide your email address and select “Submit.”

3. On the next screen, you will see a notification that you successfully subscribed to this event.

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

To request a disability accommodation to participate in this engagement, email us at by 4 p.m. Eastern, Monday, March 13. 

Note to media:

This webinar is not for press purposes. Please contact the USCIS Press Office at for any media inquiries.

We look forward to your participation!

December/January Updates (Regional Center status, visa availability, I-526 and I-829 Processing in Q4, Fee Rule, Form I-526 and I-956 revisions and comments)

A quick roundup of significant EB-5 developments since last report – rather delayed, while I held out for good news. I did not expect to start my 14th year in EB-5 grappling with basic questions like “How and why do regional centers exist?” and “Is EB-5 an immigration opportunity?” I hope that 2023 will bring policy clarifications and processing improvements to help resolve such questions, which should not be open.

Regional Center Status

On December 23, USCIS slipped a new sentence onto the USCIS website: “Dec. 29, 2022, is no longer the deadline to file Form I-956, Application for Regional Center Designation, amendments, as required by the Behring Settlement, and Form I-956G, Regional Center Annual Statement. USCIS is extending this deadline until we publish guidance that clarifies the requirements of these forms.”

I saw this update on Christmas Eve and thought about leaving the nieces and nephews to report on it, but why? EB-5 stakeholders needed this notice months ago. By three business days before the deadline, everyone had already had to make their guesses and gambles and done what they were going to do with I-956 and I-956G (if they even realized that a December 29 deadline existed, since USCIS did not offer I-956 guidance to the general public, but only in litigation settlement and a private meeting with a few litigation plaintiffs). USCIS and industry are not sure how to handle the regional center application, amendment, and reporting forms because we lack clarity or agreement on basic questions about regional center identity and responsibilities. The effect of the Integrity Act on previously-approved regional centers and their investors remains unclear. Nine months after the Integrity Act passed, the USCIS Policy Manual section on regional center designation and termination remains vacant.  Meanwhile, billions of dollars are flowing in real time under sponsorship of entities and from investors who aren’t sure what eligibility requirements do or will apply to them. On the bright side, I’m glad that USCIS acknowledged a need to “clarify the requirements,” and did not stick to an unreasonable deadline. And stakeholders now have more time to provide input.

Form I-956, I-956F, I-956G, and I-956K

The Federal Register has re-opened opportunity to comment on the new regional center forms I-956, I-956F, I-956G, and I-956K. Feedback will be accepted until January 26, 2023. (Click on the “View More Documents” button to see what you’re commenting on.) This is a great chance to submit your view on the application/implementation of regional center requirements, because a responsible person at DHS is compelled to actually read and respond to each comment made through the regulatory process. It’s not like stakeholder meeting comments, which can disappear into the void. I was interested to read USCIS’s digest and responses to the previous round of comments. Many stakeholder questions about ambiguities were met with the response “USCIS may consider rulemaking to address these issues.”

I-526 and I-829 Receipt and Processing Data

USCIS published form receipt and processing data for FY2022 Q4 (July to September 2022), and I also received data unofficially for EB-5 adjudications in October to December 2022. See my Processing Data page with updated charts and detail for I-526, I-829, and I-485 processing through the end of the year.

Short report: fantastic performance for I-485 at the California Service Center in Q4 (thanks to USCIS leadership for prioritizing EB visa issuance and to Congress for applying political pressure that proved effective!), and on-going terrible performance by the Investor Program Office. IPO is still on track to deliver over-six-year processing times for I-526 and I-829, still chaotic in the date range of petitions being processed, and still denying a large percentage of I-526. In July to September 2022, over half of I-526 adjudications were denials. Fiscal Year 2022 ended with a total of 590 I-526 approvals and 825 denials/withdrawals; in other words, $295+ million in EB-5 investment yielded a chance to pursue a visa while $423.5+ million was invested without resulting in any chance to immigrate. These dreadful numbers can trace back to factors including economic pressures on EB-5 projects, heightened risk from long processing delays, the legacy of “extreme vetting” philosophy, and rogue IPO staff alone in their home offices and apparently free to make up and apply idiosyncratic standards of proof for source of funds. I expect the I-526 success rate to improve if and when IPO standardizes and publicly articulates its policy and adjudication guidelines, shortens processing times, and increases staff supervision and quality control.

I-956 and I-956F filings commenced in Q4, but the USCIS data report for Q4 does not report them. The USCIS Office of Performance and Quality may not even realize that the I-956 forms exist, and still has line items for I-924. OPQ did add I-526E to its Q4 data reporting, lumped in one line item together with I-526. Just 188 I-526/I-526E were filed in July to September 2022.

USCIS Fee Rule

The Federal Register has published a Notice of Proposed Rulemaking for the future USCIS fee schedule, with a public comment period open until March 6, 2023. USCIS invites the public to a listening session for the Proposed Rule on January 11 at 2 pm ET.

The fee rule process is critical, because it determines over 90 percent of USCIS funding and whether or not USCIS has “the resources it needs to provide adequate service.” The fee rule process is a major reason why USCIS never has ended up with needed resources or adequate service. If you want a good cry and to lose some hair, read the 132,341 words that explain the budgeting methodology and assumptions. I am working on an in-depth article discussing the rule’s EB-5-related content. The obvious headline is the huge proposed increase to EB-5 form filing fees. But I’m more concerned by the assumptions and plans disclosed in discussion of how USCIS arrived at the proposed fees, and the question of how to respond strategically so that the Investor Program Office ends up with resources.

UPDATE: The IIUSA blog has published my detailed analysis of the formula and inputs behind the fee rule, with thoughts on how to respond.

Visa Availability

Congress did not, after all, pass the EAGLE Act or repeal country caps as part of FY2023 appropriations, which means that (for now) EB-5 visa availability remains constrained/protected by caps that limit any one country to 7% of visas in oversubscribed categories. In the near term, that on-going status quo is good news for anyone in EB-5 who isn’t an in-process EB-5 applicant born in China, India, or Vietnam.

The new EB-5 set-aside categories remain enticingly “Current” in the Visa Bulletin, which means nothing for planning because the Visa Bulletin cannot see and does not flag crowds, if any, when they start at the I-526 stage. The Visa Bulletin only monitors and controls the later visa stage, not the queue on its way to the visa stage. USCIS knows how many people are getting in line by filing I-526/I-526E, but USCIS has persistently refused to publicly report on I-526 filings/inventory by category or country. This leaves stakeholders blind to visa backlogs until the backlogs have already built up and too late to avoid.

If only USCIS would report timely and category/country-specific I-526 filing data, then we could project and compare in-process visa demand with available visa supply to calculate availability/timing for each EB-5 category.  USCIS should want to empower prospective EB-5 users to judge upfront whether and when EB-5 could offer an opportunity to immigrate. The U.S. government engages in fraud when offers an investor visa incentive while making it impossible to assess, at the time of investment, the availability of that incentive. (So far, I’ve only succeeded in getting USCIS to answer in November 2022 a Freedom of Information Act request that I submitted in February 2020 for I-526 inventory by country, having previously fruitlessly tried to get country-specific I-526 data via IPO customer service requests. The two-year-old data was useless by the time it was finally delivered to me. Others have encountered similar delays and obstruction from USCIS. As of today, the best I-526 data we have is mostly thanks to IIUSA communicating with the now-retired Charles Oppenheim at Department of State, and goes through 2021. I hope for more transparency from USCIS in 2023!)

Form I-526 and I-526E

We get another chance to provide feedback to USCIS on the revised Form I-526 and I-526E, with comments due by January 23, 2023. The last round of comments successfully convinced USCIS that it’s unreasonable to demand that petitioners detail 40 years of employment history (the current proposed version asks for 20 years of employment history). Perhaps this time we can get through to USCIS what “substantive authority” means, such that USCIS doesn’t misidentify “persons involved.” Also, let’s all remind USCIS that the public list of questions and required evidence on the Form I-526 should match the private list of questions and required evidence given to USCIS adjudicators. (For example, if USCIS truly holds the untenable standard that that each investor’s eligibility is contingent on the lawful source of funds for each other investor in the NCE, then the Form I-526 should reflect that standard, and request lawful source of funds documentation for NCE investors other than the petitioner. Currently, the Form I-526 does not request any non-petitioner source of funds evidence. But USCIS has directed adjudicators to request it at the RFE stage, and to deny direct I-526 for lack of source-of-funds documentation for non-EB-5 investors.)

Form I-956K Promoter Registration

USCIS has published Form I-956K, Registration for Direct and Third-Party Promoters. The purpose of the form is “to register with USCIS as a direct or third-party promoter” and to “allow DHS to perform standard background checks with law enforcement agencies.” The form is exciting due to its ambiguities (with vague terms pointed out in the draft I-956K still undefined), and the dramatic consequences of getting it wrong. The I-956K instructions warn that if USCIS finds problems with I-956K, penalties can include criminal prosecution for the aspiring promoter plus denial of applications and petitions associated with the regional center, NCE, or JCE associated with that promoter. The I-956K instructions request that “a promoter should submit Form I-956K before operating on behalf of any of the specified entities or promoting any offering under the EB-5 Regional Center Program.” (See also the article “Who are ‘Promoters’ and What Requirements Apply to Them Under the EB-5 Reform and Integrity Act?” in the October 2022 Regional Center Business Journal, and the above-linked Federal Register invitation to submit I-956 comments to USCIS.)

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

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

Regional Center Status after December 29

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

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

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

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

RIA Compliance Resources

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

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

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

Processing and Timing Questions

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

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

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

FY2023 Visa Availability

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

EAGLE Act and Country Caps

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Incomplete EB-5 policy update

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

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

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

FY2022 Q3 Performance Data Report Excerpt

FormDescriptionReceivedApprovedDeniedTotal CompletedPending at period endProcessing Time (months)
I-526Immigrant Petition by Alien Investor3226419145512,98843.8
I-829Petition by Investor to Remove Conditions2003404938911,52348.1
I-485I-485 at the California Service Center (WSC)1,396372544265,323

Points I notice in the Q3 data report:

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

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

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

Points I note from the unofficial data.

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

Facing FY2023, Suggested Articles, October 2022 Visa Bulletin

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

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

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

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

Reading list:

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

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

Genuine EB-5 Engagement Promised

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

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

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

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

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

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

Factors and Trends Underlying I-526 Processing Times

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

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

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

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

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

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

Number of I-526 pending as of March 3120,45516,63313,385A. USCIS Immigration & Citizenship Data page reports
Number of I-526 completed in the quarter ended March 313,615904152B. USCIS Immigration & Citizenship Data page reports
Average I-526 completions per working day in the quarter ended March 3159152C=B/61
Approximate number of IPO employees as of March200245177D. USCIS reports in stakeholder meeting notes, Congressional testimony, and/or litigation declarations
Number of employees gained or lost by IPO during the previous 2-year period45(68)E is calculated from D
Number of IPO employees assigned to I-526675626F. USCIS reports in stakeholder meeting notes, Congressional testimony, and/or litigation declarations
Percent of IPO employees assigned to I-526 adjudication34%23%15%G=D/F
Percent change to IPO’s number of adjudicators assigned to I-526 2018-2022-61%H is calculated from F
Average I-526 completions per I-526 adjudicator in the quarter ended March 31546I=B/F
Percent change to IPO’s productivity per I-526 adjudicator 2018-2022-89%J is calculated from I
Estimated time (months) to process all I-526 pending as of March 31, assuming that the rate of completion from the most recent quarter continues going forward1755264K=A/B*3
Median processing time (months) of I-526 completions in this fiscal year183144L. USCIS “Historical Average Processing Time Report
Approximate number of I-526 pending as of March from China-born petitioners8,6004,900M. Estimated from USCIS report for 10/2018; DOS report for 11/2021
Approximate number of  pending I-526 with visas available8,485N=A-M
Number of I-526 expedite requests granted by USCIS9367 (to date)O. USCIS report in declaration for litigation
Theoretical hours of “Touch time” per I-526 reported by USCIS and used by DHS as a basis to budget for needed I-526 fee revenue8.65P.  2019 DHS Fee Rule
Actual “touch time” hours per I-526 adjudication calculated from completions per I-526 adjudicator in the quarter ended March 319.083.5Q=(61 days*8 hours day)/Row I
I-526 filing fees associated with pending I-526 ($ millions)$75$61$49R=A*$3,675
Percent of I-526 decisions in the quarter ended March 31 that were denials or withdrawals (not approvals)9%21%67%S. USCIS Immigration & Citizenship Data page reports

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

People are welcome to use this blog comment section as a forum for sharing experience and asking questions, but note that larger and better arranged EB-5 groups are also available, including,,,  and Email if you know of other groups that I should mention, or if you need help joining a group.

New Form I-526E and Revised FAQ

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Behring injunction shifts compliance risks

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

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

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

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

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

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

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

…Accordingly, USCIS is preliminarily enjoined from treating as deauthorized the previously designated regional centers based on its almost certainly erroneous interpretation of the Integrity Act. Of course, the agency may do whatever is reasonably necessary to ensure that the existing regional centers comply with the Integrity Act, but those centers must presently be permitted to operate within the regime created by the Act. This includes processing new I‑526 petitions from immigrants investing through previously authorized regional centers like Behring, just as the agency would do for a newly approved regional center.

The preliminary injunction will remain in place until the earlier of: (1) a ruling on summary judgment by this Court; or (2) a reasoned decision by the agency about how regional centers should be treated given the Integrity Act’s ambiguity. Perhaps, after engaging in a reasoned decision‑making process and considering the competing policy factors, the agency could conclude that Behring and the other previously authorized regional centers can no longer operate until they have successfully reapplied by submitting new I-956 petitions. Perhaps the agency could conclude that the centers must reapply but can operate consistent with the requirements of the Integrity Act pending their new applications. Or perhaps the agency could conclude that the centers can operate without reapplying so long as they otherwise comply with the Act’s requirements. But what’s clear is that the agency cannot deem the existing regional centers deauthorized without engaging in reasoned decision-making consistent with the APA.

I-526 Processing Update (May 2022)

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

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

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

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

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

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

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

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

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

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

Regional Center reporting and NCE approval forms released

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

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

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

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

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

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

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