AILA/IIUSA Forum Updates (Kendall, Oppenheim, visa availability)
November 5, 2018 39 Comments
Last week I attended the 2018 AILA & IIUSA EB-5 Industry Forum, which featured appearances by new IPO Chief Sarah Kendall and Department of State Visa Control Office Chief Charles Oppenheim.
Ms. Kendall is a career civil servant and spoke accordingly. She gave the impression of being competent, in control, and unlikely to say anything unexpected. I didn’t note anything major in her speech that I hadn’t already heard from the USCIS Policy Manual, OMB Unified Agenda, or previous stakeholder meetings. (UPDATE: Here is a copy of Ms. Kendall’s prepared remarks.) The headlines: no update on regulations beyond what OMB said, and no significant new input on the hot issues of redeployment, bridge financing, material change, or minors as investors. Stakeholder meetings are not the proper venue for policy announcements, so I suppose there’s really not much to do but repeat existing guidance and say “thank you, we’ll consider it,” for everything else. One would expect Ms. Kendall to have a law enforcement orientation, considering her background. And indeed she stated that “focus must be on program integrity,” and listed these objectives for IPO: improve transparency, protect national security, lawful administration of our nation’s laws. I appreciate that she started with transparency, which is foundational to the other two objectives. And it was gracious of Ms. Kendall (and former Interim Chief Julia Harrison) to attend the AILA/IIUSA event and take time to chat with attendees.
In the past I’ve sometimes felt like a lone crusader with my spreadsheets and numbers reports. I attended the AILA/IIUSA forum in person partly because I suspected that Charles Oppenheim would give information about visa numbers and wait times that my clients need to know, and no one else would process it or publicly report on it. But I was wrong. A wonderful panel on visa numbers not only provided a very extensive data set but analyzed and drew actionable conclusions from it, and then IIUSA made the right choice to promptly publish the full presentation where anyone can access it. And now other people are already reporting on it, without pausing to worry about messaging. Integrity depends on transparency – an important lesson for everyone.
Here is the gold mine: Presentation Materials from Department of State Visa Control Office Chief Charles Oppenheim (UPDTATE: IIUSA has also published commentary on the presentation.)
The slides provide the most comprehensive and current set of visa-availability-related data yet, with helpful interpretation and conclusions. Bottom line: how long should an investor filing I-526 on October 30, 2018 expect to wait for an EB-5 visa number? Mr. Oppenheim made the following prediction: China, 14 years; Vietnam, 7.2 years; India, 5.7 years; South Korea, 2.2 years; China-Taiwan, 1.7 years; Brazil, 1.5 years. Here’s the famous slide:
These time predictions refer to the time between I-526 filing and visa availability for people filing I-526 on October 30, 2018. People who filed I-526 before October 30, 2018 have fewer people ahead of them in line, and thus can expect correspondingly shorter wait times. People who file later can probably expect longer waits (unless trends or rules change, as they could). The predicted visa wait times for South Korea, Taiwan, and Brazil are now short enough as to be likely imperceptible (i.e. even shorter than I-526 processing time). Mr. Oppenheim foresees that South Korea, Taiwan, and Brazil will remain current (no cut-off date) through 2019 and probably 2020. The predicted wait time for an India-born investor filing today has lengthened since the last prediction from April, but not as much as I’d feared. Mr. Oppenheim now predicts that the Visa Bulletin will have a Final Action Date for India “no later than July 2019.” In other words, the annual EB-5 visa allocation available to India in FY2019 is expected to run out in July. In October 2019, when new FY2020 visas become available, India will have a Final Action Date in 2017, meaning that India-born applicants with priority dates before the 2017 Final Action Date will then be able to apply for visas. As for China, Mr. Oppenheim predicts that by October 2018, the Final Action Data for China-born applicants will progress to 10/22/2014 (best case) or 10/8/2014 (worst case), and that China will advance (at best) two months in 2019. Mr. Oppenheim expects to be able to move Vietnam’s Final Action Date as far as September 2016 this year, before the FY2019 visas available to Vietnam run out.
For the full background to these predictions, and very helpful commentary on how the visa process and allocation work, potential variability, and what we do and do not know, see the full slide presentation and my voice recording of the panel. (And if you want all the backlog-related data I know, though all you really need is Charlie’s predictions, see my backlog spreadsheet.)
A shout-out to other colleagues reporting on the conference:
- EB-5 Update – New State Department Data Released, by Bernard Wolfsdorf, Robert Blanco, Joseph Barnett, and Vivian Zhu
- Department of Sate Gives EB-5 Backlog Projections and Anticipates Cutoff Dates, by Matthew Galati
- 7 Things We Learned from New EB-5 Program Chief Sarah M. Kendall, by Joseph Barnett
Wolfsdorf Rosenthal is holding a free webinar on 11/8 to discuss the DOS data and implications.
See also the conference program/RCBJ Business Journal available online. I particularly recommend these articles:
- Analyzing the Recent Trend of EB-5 Expedited Processing, by Joseph Barnett, Partner, Wolfsdorf Rosenthal LLP
- Summary and Analysis of Litigation to Expand EB-5 Visa Capacity, by Carolyn Lee, Partner, Miller Mayer
Regarding legislation and potential developments in Washington, I did not hear anything particularly newsworthy. Industry lobbyists say that they see hope for the future because they are finally united for the first time. This talking point would be more encouraging if we hadn’t heard the same statement last year, before the last attempt at EB-5 legislation that excluded most of the industry until the 11th hour and then met with industry discord. The panel last week did not specify compromises or concessions that have been made since then, and did not reflect specifically on what went wrong. The panel foresaw possibility for renewed legislative efforts in 2019, initiated in the House. EB-5 has best chance of getting attention after border wall funding and DACA are no longer taking all available oxygen, and after more representatives have been educated on EB-5. The panel hinted that we might be looking at more continuing resolutions in December, particularly for DHS funding if Democrats do well in the midterms. The proposal to eliminate per-country caps (in the Yoder amendment to the House version of the DHS funding bill, and H.R.392) got little mention, and no one said they thought it likely to be enacted.
EB-5 Updates 
Hi Suzanne, This level of transparency in numbers is great news for investors, specially from India, China and Vietnam. Once a country say India hits the cap of 700 during the FY19, do you know how would it receive the unused portion of visas? Will the unused portion be equally divided among Chinese, Indian and Vietnamese applicants? Or will all the unused visa be received by just Chinese applicants since their dates are in 2014, and Indians will be 2017. For other employment based visa categories, like EB-2, the unused portion is equally divided among backlog countries. So, I am wondering why EB-5 would be treated different. Thanks.
unusued portion goes to the applicants with the earliest priority date ( aka in this case all unused go to china )
Your question is answered by Charlie Oppenheim’s presentation (see especially slide #5) and the panel recording, which I link above. See also this post: https://blog.lucidtext.com/2018/04/05/eb-5-visa-waiting-line-and-visa-allocation/
Suzanne, can you clarify the slide “EB-5 Applicants with Petitions on File at NVC” What does this number really mean ? is it the visa demand already at NVC for each of the countries. It does not make any sense as Chinese above 2014 cannot file their CP processing.
I assume this reflects number of NVC file receipts (which happens before DS-260 processing per the process described here https://millermayer.com/2017/nvc-timeline-consular-processing/.) In the panel, Robert Divine noted that China may be undercounted in that table since I-526 filed before 2015 didn’t always clarify number of derivatives.
if i understand it right this is actually approved i-526 petitions but those that have not filed i-485 / aka DS-260
Hi Suzanne, I have a question. In the same project among all the investors, do investors who filed their I-526 first always get approved first? I’m asking this because no one in my project hasn’t gotten approved yet and my priority date is now past the date listed on the USCIS website so I can technically submit a case inquiry. I have talked to my lawyer and he suggested to only do a case inquiry after someone’s I-526 gets approved first (I-924 of the project was approved early this year). But that implies that the USCIS review applications in the same project in the order when they were received, and I wonder if that is the case.
My best answer to this question is: it’s complicated. Here’s a post with everything I know about I-526 processing: https://blog.lucidtext.com/2018/05/18/how-long-does-i-526-take-iii/
Thank you for your reply. I just read that article yesterday. Have you seen a situation where a petitioner got their I-526 approved first even when they’re not the first petitioner of the project? I was just hoping that submitting a case inquiry will help the processing moving. But my lawyer told me that i have to wait a couple months to submit a case inquiry again after the first inquiry, that’s why my lawyer suggested to wait for the first approval first. I have not heard that I have to wait a couple months after the first case inquiry to submit another one though.
I dont know if they process petitions with a project in a sequential order. I think predicting that is as good as a new york subway train arriving on time. Numerous folks have seen a trend where once a petition within a project gets approved, several others in that project get approval after that. Its not a guaranteed pattern but the trend suggests that once a petition is approved, others follow.
Hi Suzanne, I’d like to correct something you mentioned:
“These time predictions refer to the time between I-526 filing and conditional green card for people filing I-526 on October 30, 2018.” However, Charlie’s slide mentions the time as between I-526 filing and a visa becomes available (i.e. you can file CP/I-485). So in reality, the wait for someone from India will be 5.7 years plus any I-485/CP processing time.
Thank you. I will correct the post.
Hi Suzanne, thanks for the excellent post. off topic question, have you heard anything recently about the Ira kurzban lawsuit against counting of derivatives in EB-5. There was a provisional class certification granted by the judge in the case on Oct 22nd 2018. I don’t know what that means, just wanted to check if you are hearing anything from your sources.
I hear that the class certification could be a good or bad thing. lt shows that the judge intends to make a ruling (+), but if the ruling were adverse it would affect the whole class (-).
Hi Suzanne, great blog.
Quick query, my wife is the main applicant and although an Indian national she was born in the UAE. Lawyers have stated that it is possible that if needed they can request USCIS to have her application viewed as per her country of birth rather than India. Considering her application went in on May 31, 2018, do you see this as an option to fast-track things and is this guidance correct?
It’s my understanding that Department of State will automatically consider your wife chargeable to UAE, her country of birth — that this is the default. But the lawyers should know better. https://www.murthy.com/2016/03/28/cross-chargeability-in-green-card-cases/
You do not get fast track based on country of birth
True, but you can avoid slow track based on country of birth. In this case, the principal born in UAE will avoid the 5.7 years predicted for people born in India.
Hi Ash,
I’ve got good news for you ! You can use your wife’s country of chargeability (UAE) when filing for I-485/CP. So once your I-526 is approved, you will not face the backlog of other Indian born applicants. See https://en.m.wikipedia.org/wiki/Foreign_state_of_chargeability for more info.
Hello Suzanne and others
Could someone please advice but only if you have knowledge or experience of this, please. I don’t want rumours, etc. please. Thank you very much for understanding.
After 2 years and 3+ months wait I finally got to the stage of NVC wait for the memo. I got this NVC memo, but now they forgot to include my wife on it. My attorney already submitted inquiry to add her there.
My question is – do you know how long does it take on average for them to correct such a thing? And if there is delay and they don’t do it for too long, what can I or my attorney do about it?
Thanks a lot!
Just wanted to add.
The same situation as mine is described here:
https://www.eb5investors.com/qa/why-dependents-not-included-in-nvc-letter
There is only one reply from one attorney about waiting times – few days to a week. It would be great if this was average wait. However, I also heard it can take much longer and there is no time limit on making this correction, so I have no idea what is usual wait time for this and what to do if I wait for too long. Including NVC wait, I already spent 2 years and 4+ month waiting. I can wait some more, looks like I usually have no choice anyway, but it’s nice to know average wait time and what can I do if it is exceeded.
If someone could advice based on knowledge and/or experience, it would be great!
Thank you very much.
You have spent 2 years and 4 months waiting for adding your dependents? Or are you talking about the entire process since you started your EB-5 process?
Approval of your 526 is done by USCIS, while adding dependants is done by the NVC. Two different agencies of the US government. So, don’t club the timelines.
Anyways, what you have described is a common problem, you should be hearing back in about a month since the time your lawyer has notified NVC about your dependants.
Thank you for your time estimate.
Regarding your first part of comment. I clearly wrote in two places:
1) “After 2 years and 3+ months wait I finally got to the stage of NVC wait for the memo.”
2) “Including NVC wait, I already spent 2 years and 4+ month waiting.”
The words “after” and “including” show that I mean wait in total and not wait for NVC.
Anyway, thank you for your help.
One month is quite long wait to correct their own mistake.
Can I do anything to try to speed it up? Can I phone them or send them email after a week or two, for example?
Do these projected wait times for Vietnam and India hold true for those filing their I-526 now even if they are granted expedited processing and receive an approval on their petition in 2-3 months (rather than the usual 20-26 months)?
Even they have I-526 approval in 2-3 months, they will have to wait years for the visa. And visa will be issued based on priority date (I-526 receipt date), not I-526 approval date.
Vietnam already has a final action date, so expedited I-526 approval would have no effect on the total visa wait time for Vietnam. As Frank points out, Vietnamese can expect to get a visa in order by priority date (I-526 filing date) not I-526 approval date. India is not expected to get a Final Action Date until July 2019, so Indian-born people might avoid the wait by becoming documentarily qualified for a visa prior to July 2019, and behind fewer than 700 other Indian-born with earlier priority dates. (509 applications for India were already pending at NVC as of October 2018 per Charlie’s data, and more with USCIS.) Getting documentarily qualified before July may be possible for Indian-born people already in the US, if they get expedited I-526 processing and then file I-485 right away. I doubt it’s possible for people abroad who must go through consular processing, even if the I-526 is expedited, considering what I hear about many-month delays in forwarding I-526 approvals to NVC and issuing fee bills.
Thanks Suzanne. The window of opportunity for Indian applicants to avoid the 5 year wait time seems small. What might happen to Indian applicants who qualify for expedited processing, apply now, receive an approval before July 2019, yet find that they have > 700 other Indian-born candidates ahead of them? Would the wait time (from the time of I-526 filing to visa availability) lengthen proportionately or would you expect it to be “5.7 years” right away because they didn’t make the cut?
I don’t see why anyone from China, Vietnam or India would even consider EB5 going forward.
In your hypothetical, the wait time could be less than 5.7 years if USCIS continues to be slow in adjudicating I-526 petitions, and thus slow in releasing the 5.7 years of Indians with earlier priority dates into the pool of people able to apply for a visa. But I expect I-526 times to speed up over all considering the effect of wait times on demand.
Hi Suzanne, Thank you for providing such detailed article. I’m an Indian citizen and trying to qualify for expediting processing, assuming that I-526 approval would arrive by end of February 2019, is there any chance of me beating the retrogression?, we would have to opt for CP as I do not stay in USA currently. My son is 19 years old on F1 visa and would be aging out if retrogression is in place before our conditional GC is approved. My question is – does my son’s age freezes when we pay fees at NVC? and how much average time it takes from the I-526 approval till payment of fees at NVC.
Would appreciate if you can provide us any insight by your experience.
Even if you got expedited processing, you still won’t get a temporary green card for the next 6 years and your 19 year old son definitely won’t get a green card.
Yes, in normal circumstances it want. However, one of the attorney told me that they had requested NVC in past for expedited processing as child was aging out and they had responded quickly. I might have 3-4 months between 526 approval and NVC processing before retrogression is in effect say in June/July 2019. What i don’t know is at what process exactly does the clock stops for my son, someone told me that it happens when you pay fees at NVC and someone told me that in only happens when you actually appear for consulate interview and I don’t see any clear guidelines on official website as well and hence the confusion. Would appreciate if someone has a clear idea on how actually this process works.
Make sure that you get it in writing. My brother recently attended an ILW session in Mumbai where an Attorney (with the initials SN) for a Tinian (Northern Mariana Islands) regional center claimed that Indians could get the green card, but this attorney and the regional center straight up refused to give anything concrete in writing. If they aren’t giving it in writing, it’s not reliable and trustworthy. It just didn’t make sense why I’d put my money in a regional center which doesn’t even have audited financials to begin with, if they can’t even guarantee in writing that we’d get our temporary green cards before the retrogression hit.
Even if we get the 526 approval in 3-6 months, we’d still have to get in line with the others for CP or AOS, it’s pretty much guaranteed that we’re going to be stuck in the queue waiting for 6 years to get a temporary green card because they issue visas based on priority date, and there’s 6 years worth of Indians ahead of us in the queue, and based on USCIS figures, I’d say that it’s impossible to get the 526 approval AND the AOS or CP done BEFORE the retrogression kicks in, which means we’re stuck with a useless 526 approval for 6 years, waiting for the other Indians ahead of us.
Hey I am indian born and do have approved I 526 petition. I filed I 526 on dec 7 2017 and approved on 18 November 2018. I filed ds260 and received letter of ds260 completion and waiting in queue for interview on may 13 2019. Can anyone give information about expected time to get interview?
I had the exact same question, and I recently heard at a seminar that it’s first in, first out, and right now there’s over 9 years worth of applicants ahead of you in the queue, so you’ll get called when a visa number is released to you.
Priority date is dec 7 2017. Right now in September visa bulletin priority date is sep 2017 . So may be it should take around 3 or 4 months.
In May 2019, Charles Oppenheim of Department of State gave an average of 112 days as average time for Indian applicants to become eligible for a visa interview after having been notified by NVC to submit documents. See Slide 6 of https://iiusa.org/wp-content/uploads/2019/05/IIUSA-2019-EB5-Advocacy-Conference-Visa-Update-with-Charles-Oppenheim-1.pdf
Thank you Suzanne for information . So that means average 112 days to get interview for Indian applicant after ds260 completion and waiting in queue for interview letter arrives?
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