How long does I-526 take? (Part II)

This post considers factors behind the wide variation in individual I-526 processing times. In my previous I-526 post, I discussed processing time on average as a function of volume and capacity. Given historical data on number of I-526 receipts, approvals, and pending petitions, we can calculate an average I-526 processing time of about two years — an estimate corroborated by IPO Processing Time reports. But we know that in fact, some petitions get approved relatively quickly, and not in order by filing date.

  • The USCIS Processing Time Information page is updated monthly with a report on IPO’s progress with EB-5 petitions, and I log the reports (here for all petitions and in my I-526 master file).  If we take the reports literally, IPO processed only a few weeks of I-526 filings in all of 2017 (from January 2017 working on petitions filed 9/27/2015 to December 2017 working on petitions filed 10/18/2015). But processing volume data tells us that IPO processed around 12,000 I-526 in 2017 — at least double and probably triple the number of petitions filed in September/October 2015. And the monthly processing time reports themselves jump around — briefly reporting progress to December 2015 before falling back again to October in the latest report. Whatever’s really happening at IPO, it’s not well captured in processing time reports.
  • In October 2017 IPO claimed to be working on I-526 filed in 2015, but Department of State reported having over 1,500 pending visa applications based on I-526 petitions filed in 2016 and 2017. That reflects at least 500 I-526 petitions adjudicated out of date order — and that’s only for pending applications and only for five countries, not counting all applications for the year.
  • Investors who track their own petitions plus a group of petitions filed at the same time report wide variation in completion rates within those cohorts.  (Adding and subtracting to the number at the end of one’s receipt number yields receipt numbers for concurrently-filed petitions that can be tracked individually using the USCIS case status system.) The EB5 Forum I set up includes reports from people tracking groups of I-526 petitions.
  • I’ve started collecting anecdotal evidence from investors, and those who’ve responded so far report recent I-526 processing times ranging from 3 months to 30 months. If you’ve been through the I-526 process recently, please help the community by entering your processing dates in this form, and share the form link (https://goo.gl/forms/uIdXGYMYVBc4bVHo1). The form results can be reviewed on this spreadsheet.  If we collect more individual experience, we can get a better sense of what IPO is actually doing, and which factors (Exemplar approval, project size, regional center sponsorship, investor origin, etc.) best explain variation in actual processing times.

Here is a summary of what IPO has said about I-526 time variation (summarized from communications copied in my log of IPO communications on processing times).

  • DHS estimates that the average Form I-526 gets 6.5 hours of touch time.  That means an adjudicator spends less than a day handling the case —  the remaining (and most variable) processing time is queue time and time spent waiting for additional evidence or supervisory approval.
  • IPO has at least three queues going for I-526 petitions: (1) a queue for direct EB-5 petitions; (2) a queue for regional center petitions based on investment in projects that haven’t yet been reviewed; (3) a queue for regional center petitions based on investment in projects that have Exemplar I-526 approval or at least two previous I-526 approvals.  The following chart illustrates my understanding of IPO Deputy Chief Julia Harrison’s description of the process.IPO indicates that each queue has dedicated staff working on it. Petitions within each queue are ordered by earliest filing date. A regional center petition for a project not previously reviewed must wait in Queue 2 (for project-specific adjudication) and then again in Queue 3 (for investor-specific adjudication). RC petitions for previously-approved projects advance straight to Queue 3. IPO encourages communication between team leaders on the Queue 1 and Queue 2/3 side to ensure that direct and RC petitions filed at the same time move forward concurrently. [My commentary: With these various queues, how close can IPO possibly get to First-Come-First-Served service by filing date, and to which queue do the IPO processing times reports refer?  My working hypothesis is that “we’re working on petitions filed October 2015” reflects mainly the status of Queue 2 (the major bottleneck, I suspect), that Queue 1 is constrained by IPO’s attempt to keep it consistent with the Queue 2, and that petitions assigned straight to Queue 3 get relatively quick processing.  Please use my form to share your experience and help disprove or not my hypothesis!]
  • Factors that can speed I-526 processing per IPO:
    • Investing in a project with an approved Exemplar and/or two previously-approved I-526
    • Having a clear, high-quality petition (this is important when evidence requests and supervisory approval are the major variables — besides queue time — in overall processing time)
    • Having an approved expedite request (this shortens the queue time, not the adjudicator touch time)
  • Factors that can slow I-526 processing per IPO:
    • Having a petition that’s poor-quality, unclear, problematic, or otherwise inspires IPO to request additional evidence
    • Filing with/after a surge of other people who filed poor-quality petitions
  • Factors that don’t affect I-526 processing time per IPO:
    • The investor’s nationality. (IPO does not currently sort petitions by nationality. There is no hold-up for China-born petitioners at the I-526 stage, as there is at the visa stage. However, IPO asks whether they should change that — considering that fast I-526 approval doesn’t help China-born investors facing a long visa wait regardless. Stats show that I-526 denial rates are much higher for some countries than others, which makes me suspect that IPO finds some countries’ source of funds and background checks more challenging than others – which could naturally be associated with longer processing times. So even if the process is FCFS for all nationalities, it’s probably not FIFO for all nationalities.)
    • Whether the petition is for a direct or regional center investment. (IPO claims that they try to move direct and RC petitions forward concurrently. However there may be some regional center advantage in practice since direct petitions are often the first in a project and cannot take advantage of Exemplar approval.)
    • Project size. (IPO reports that they do not privilege petitions for big projects with many investors. But some anecdotal evidence suggests otherwise.)
    • TEA status. (Some legislative reform proposals have suggested offering quicker processing to petitions based on investment in a Targeted Employment Area, but IPO does not report having any such policy now.)

—–
In other news, note that I updated my at-risk post with a link to Chiayu Chang, et. al., v USCIS, a recent court decision that pulverizes the argument that a call option necessarily constitutes an impermissible debt arrangement. Judge John D. Bates points out that “Unlike a sell option—or a note, bond, or similar arrangement—a buy option provides the investor with no security that she will ever see her money again,” and concludes that “In the end, USCIS has acted in a manner that conflicts with the plain language of its regulations, that is not compelled by statutory or regulatory purpose, that unreasonably stretches the rationale of Matter of Izummi, and that runs counter to the evidence in the record.”

About Suzanne (www.lucidtext.com)
Suzanne Lazicki is a business plan writer, EB-5 expert, and founder of Lucid Professional Writing.

14 Responses to How long does I-526 take? (Part II)

  1. Aasif Chhipa says:

    Hi Suzanne,
    I appreciate the explanation of processing by chart.
    But this does not fit in my case as my project is already approved when I applied my petition.
    Even after this, I was issued an RFE which was project related RFE. This RFE is issued after 18 months I applied.
    I don’t understand if a project is approved then how come I have project related RFE.
    I am also aware of that half of the investors got the approvals straight away that indicates the project is exemplar approved.

    Can you please explain this?
    One more thing that after issuance of RFE after 18 months I immediately submit the response in 20 days. Its been 15 days so far since I submitted the response and stil there has not been any changes in my status in USCIS website.
    When RFE was issued on January 10 2018 my status changed from “Case received” to “RFE Issued.”
    Once I submitted the response on January 30th 2018 the status in USCIS website should have been changed from :RFE Issued” to “Response Submitted”
    But it has not changed so far even after 15 days.
    Can you please give some update son that.

    I would appreciate your precious time and reply,
    Reagrds
    Aasif

  2. J says:

    My petition in November 2015 has been outstanding for 27 months – I looked at about 100 petitions filed on the same day, roughly 20pct of them have still yet to be processed (no approve/deny/RFE)

    • Thank you for this update. I see that the USCIS processing time information page has just reported that they are back to working on October 2015 petitions. One really wonders what is happening behind the scenes. I hope you hear something soon!

  3. YY says:

    Suzanne,

    I’ve been a reader of your blog for a while and I think you grasp all the regulation and EB5 issue the best on the internet.

    My question is: is there anywhere to find the approval status of i924 and i924a for each regional centers? Also, if an i526 application requires project related review, will USCIS send the RFE to the applicant or will USCIS verify with regional center on its own?

    Thank you very much!

  4. Bo says:

    I am not sure if you noticed the new processing times today. We are back at Ocotber 18… (almost 2 months backward move)…

  5. Suzanne, as a former visa officer well-versed in the chaos of processing backlogs, I have repeatedly proposed a simple reworking of the IPO I-526 process. Before separating RC and individual cases, the IPO should separate “visa available” I-526s from “visa backlogged” I-526s. Currently, the former would only include of nationals of China but we are told Vietnam will soon be on that list. If IPO initiated intake this way, the backlogged nationalities would be receipted in immediately, with priority date established, then set aside for adjudication AFTER the “visa available” cases are processed. What is the point of adjudicating backlogged cases – which make up close to 90% of filings — when the establishment of the priority date is defined via the Notice of Receipt, not by the date an RFE is generated or an approval issued? What good is it to have thousands of I-526 approvals destined to wait for years and bottleneck the entire adjudication process?

    The USCIS should intake and issue receipts/priority dates as it does, first in/first out. After that, IPO should adjudicate those cases which can be approved NOW for conditional residency and allow those persons to immigrate in a reasonable period of time. Doing this would have absolutely no adverse affect on applicants from backlogged nationalities (since their priority dates would be accurately registered) but it would allow USCIS to move through those who CAN immigrate today, catch up with current cases, then organize its processing workflow in a manner which permits them to tackle the oversubscribed nationalities systematically, having those petitions approved and ready years before the visa numbers become available to them.

    • You could send this comment to IPO, as they did ask for such feedback at the last stakeholder meeting. I wonder about the potential effect on EB-5 projects, however, and the possible invitation to fraud, if project people could be confident that paperwork for Chinese investors wouldn’t get looked at for years.

    • happy says:

      Thank you for sharing. I think it is a brilliant idea to potentially benefit everyone. There is one catch though. If USCIS focuses on adjudicating “visa-available” I-526s, then the processing time would probably drop from the current 27 months to 12 months for “visa-available” I-526s. This means roughly an additional one-year visa-available petitioners would enter NVC sooner and receive visa ahead of the visa-backlogged I-526 petitioners. One-year’s visa available non-Chinese petitioners are probably 5,000 persons, consuming 6 months’ visa supply. As such, Chinese petitioners would be delayed for an additional 6 months to receive their visa. Some of their kids may age out just because of this 6 months.

      To most visa-backlogged petitioners who are facing the risk of age-out children, your proposal, if adopted, would be a great news, if details can be worked out with the project sponsors on escrow release etc.

  6. Dan says:

    Hi all, what I can’t seem to understand is that at the last Stakeholder meeting we were told that we would all be surprised at how much it advances as they were processing much larger quantities. Especially on I-829’s. That has not happened at all. It will be interesting to hear what they say about the reasons at the next meeting.

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