How Long Does I-526 Take? (III)

2020 UPDATE: I-526 timing factors have changed since this post was published in May 2018. For updates, please see:

• Interpreting Processing Times Reports (6/2/2020)
• Report from 3/13 USCIS Engagement on Visa Availability Approach (3/13/2020)

— Original Post —

This post combines, updates, and replaces my two previous posts on I-526 processing times. I’ve divided the post into six sections:

• Interpreting Official USCIS Processing Time Information
• Predicting Average Processing Times
• Understanding Variation in Processing Times
• Expedited Processing
• Individual Processing Time Experience
• Resources for Investors

How much time does USCIS take to process an I-526 petition? The short answer: usually between 3 and 33 months. The rest of this post provides the long answer.

Interpreting Official USCIS Processing Time Information

USCIS addresses the processing time question on the EB-5 filing tips page:

How long does USCIS take to process a Form I-526 petition?
For current estimates, see USCIS Processing Time Information. However, processing times can vary depending on the circumstances of each case. These include factors such as the time it takes to complete a background check and whether we need to request additional evidence.

Since, March 23, 2018, the USCIS Processing Time Information page for I-526 has looked like this:

The report claims that “We generally process cases in the order we receive them,” and provides two pieces of information: an estimated time range, and a case inquiry date.

• What “Estimated time range” means:  This month range gives a theoretical average processing time and an upper limit. The lower number (25 months) is an average that’s calculated by dividing the number of I-526 petitions pending at IPO by the average number of petitions that IPO has been processing in a month. The higher number (32.5 months) is “generally” the lower number multiplied by 1.3. Cases that take longer than 32.5 months to process have exceeded an arbitrary “upper limit” for “normal” processing times, and considered outliers. The month range provides a reasonable theoretical estimate for I-526 processing times. However, we have no evidence that the dates broadly reflect the actual ages of cases currently being adjudicated at IPO. Quite the contrary, in fact, as discussed below. (Source of my interpretation: USCIS’s More Info page, which says that we “continue to use our old method to calculate processing times” for non-pilot forms such as I-526, combined with an Office of Inspector General report exposing the “old method” for calculating processing times in the I-485 context, and corroborated by reproducing USCIS’s presumed time range calculation using public data on I-526 pending petitions and volume of adjudications.)From March 23, 2018 to May 18, 2018, the Processing Time Information Report Estimated Time Range for I-526 has remained unchanged: 25 to 32.5 months. Since the Estimated Time Range appears to be a broad theoretical calculation, not dependent on fluctuating reality, I expect it to remain unchanged in the report indefinitely, regardless of what’s happening on the ground at IPO. [Update: on 5/31/2018, the report was updated to show 20-25.5 month range for I-526.]
• What “Case inquiry date” means: As the Processing Time Information page explains,
  

  We have posted a Case Inquiry Date … to show when you can inquire about your case. If your receipt date is before the Case Inquiry Date, you can submit an “outside normal processing time” service request online.

  From March 23, 2018 to May 18, 2018, the Case Inquiry Date for I-526 has remained constant: today’s date minus 971 days. (I spot check the webpage periodically, and log the reports in my IPO Times file.) The webpage claims that the report gets updated “around the 15^th of each month,” but that has not been true yet.

  Like the Estimated Time Range, the Case Inquiry Date appears to be merely theoretical and functional. It’s more-or-less simply the upper end of the Estimated Time Range, converted from a month into a calendar date. It does not claim to be the date of cases that IPO is processing now. It’s just the cut-off date that IPO has set for complaints – and naturally IPO would choose to put that date back as far as possible. If you want to estimate when you may start to complain, add 971 days to your priority date. But your I-526 will get a decision before that date, unless it’s an outlier. And I predict that variable currently set at 971 will be adjusted downward eventually, assuming that IPO continues to improve processing speed. [Update: on 5/31/2018, the report was updated to show I-526 case inquiry date of 761 days ago, rather than 971 days ago]

Predicting Average Processing Times

Average processing time is theoretically a function of inventory (number of pending petitions) and flow rate (rate at which IPO approves and denies petitions). You can get the input data for this equation from the USCIS Immigration and Citizenship Data page, which posts quarterly reports for I-526 and other forms. My I-526 Time spreadsheet turns the quarterly data into a prediction model that estimates average processing times as a function of petition volume at different points in time (with some assumptions about future trends). The last quarterly report indicated 24,627 I-526 pending at IPO in December 2017 and an average of 2,954 petitions processed per quarter over the last four quarters. 24,627/2,954 = 8.3 quarters to process the pending petitions (estimated average). So an I-526 petition filed in January 2018 would be theoretically likely to wait 8.3 quarters (25 months) for processing, other factors being equal. That’s consistent with the Processing Times Information page, which starts the Estimated Time Range at 25 months. But unequal reality leads to some petitions being processed more quickly.

Understanding Variation in Processing Times

Here’s 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 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. With this complex process, it’s unsurprising that IPO appears far from its intention to process cases more-or-less in the order in which they are received.
• Factors that can speed I-526 processing per IPO:
  • Investing in a project with an approved Exemplar and/or 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. Also, 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.)

Expedited Processing
EB-5 forms, like other immigration forms, can apply for and benefit from expedited processing under certain limited conditions. Expedited processing reduces the time a form takes to reach an adjudicator’s desk. It does not reduce the time to adjudicate the petition, and does not reduce the visa wait time for petitioners from countries with a cut-off date.

• For official information, see https://www.uscis.gov/forms/expedite-criteria
• Here is the most balanced and helpful article I’ve read on the topic: Analyzing the Recent Trend of EB-5 Expedited Processing by Joseph Barnett, Partner, Wolfsdorf Rosenthal LLP (originally published in the 2018 Q3/4 Regional Center Business Journal)
• This article gives historical context: Anatomy of a Successful EB-5 Expedite Request (May 2013)
• This article gives the perspective of counsel representing a client who promotes expedited processing: Successful Expedited Case Processing in EB-5 (September 2018)
• This article provides a critique: The Great EB-5 “Expedited Processing” Debate: The Issue of “False Inducement” (September 2018)

Individual Processing Time Experience

Individual processing time variation means that some people wait longer than the theoretical average 25 months for I-526 approval, while others receive approval much more quickly.

My best evidence for faster-than-average approval is priority dates for pending visa applications. If all I-526 take 2 years to process, then Department of State should have been receiving applications in 2017 from people who filed I-526 in 2015. In fact, as of October 2017 Department of State reported having over 1,500 pending visa applications based on I-526 petitions filed in 2016 and 2017. Assuming an average 3 visa applications per approved petition, that reflects about 500 I-526 petitions approved and advanced to the next stage within a year of filing. And the DOS report only mentioned pending applications for five countries, not counting all applications for the year. I-485 inventory statistics likewise show many pending status adjustment applications with recent priority dates.

I set up a Google Form to collect reports of processing time experience from individual investors. (Entries still welcome!) In the very limited sample of entries so far (which appear in this Google Sheet), I-526 approvals in 2017/2018 that were reported to me had an average processing time of 19 months, with standard deviation of 7 months. The following tables summarize results reported in my Form so far.

Resources for Investors

• I set up an EB5 Forum for investors to discuss EB-5 experience. (Right now it’s private but anyone’s free to join – just sign up. I participate in the conversation occasionally as I have time.)
• Some blog readers have set up a group using the Telegram app to share I-526 experience. I’m not on this myself, but I hear that discussion has been lively. Here’s the link to join: https://t.me/EB5VisaGroup If you know of other social media for EB-5 investors, alert me and I’ll publish links here.
• Here’s my I-526 Time spreadsheet with data and prediction tool, and my log of communications from USCIS regarding processing times. Keep the links; I update the files regularly as new information becomes available.
• My post I-526 and EB-5 visa wait times; country-specific effects of potential changes (June 18, 2018) examines the separate question of the time to get an EB-5 visa (conditional permanent residence).
• Helpful articles: Options for EB-5 Investors When Form I-526 Petitions Are Pending Too Long and Mandamus Lawsuits on Delayed EB-5 Adjudications (Wolfsdorf Law)

Additional Note

My series of timing posts is missing an important piece: analysis of the steps and time factors (for countries with no cut-off date yet) between receiving the Form I-797, Approval Notice for the I-526 and claiming an EB-5 visa number. Especially Indians are trying to calculate: if I can count on receiving I-526 adjudication in the next few weeks, can I count on getting allocated a visa number in the advance of the Visa Bulletin giving a cut-off date for India? The point at which the visa number actually gets allocated, and the factors/timing between I-526 approval and that point, vary between I-485 and consular processing, and I don’t understand it all yet. But potential investors should include this in discussions with counsel, because delays can be considerable for consular processing anyway. I’m hearing reports of USCIS taking  8+ months just to forward I-526 approvals to the National Visa Center. Ironically, it seems that the faster USCIS adjudicates I-526, the more it drags its feet on advancing that approval to the next stage. But this is a developing situation, and I have limited examples. Here is my background reading list so far FYI. Please email me any additional helpful articles and current timing information.

• NVC Timeline for Consular Processing (October 11, 2017) Miller Mayer
• Adjustment of Status Process (June 20, 2017) Miller Mayer
• The Operation of the Immigrant Numerical Control System Department of State
• The “Red Combo Card” Option for EB-5 Indian Nationals – Will It Work? (September 8, 2018) Wolfsdorf Rosenthal

UPDATE: I’ve added a EB-5 Timing page to collect links to all data and posts related to EB-5 visa availability, visa allocation, and wait times.