EB-5 Visa Timing in 2020

December 31, 2019 8 Comments

At least 70,000 people are currently in the stage between I-526 filing and receiving visas (conditional permanent residence). Who will receive EB-5 visas in 2020? The answer depends on visa availability, I-526 timing, and the role of country caps.

Visa Availability

Thanks to roll-over of unused numbers from other categories, EB-5 has a few more visa numbers than usual to work with this year.  Department of State has allocated 11,111 visas to EB-5 in FY2020, of which any one country can get up to 778 visas (7%) under the country caps.  (China is the exceptional case, having access to 288 visas by right plus – in practice – all the numbers unclaimed by low-volume countries. About 5,200 EB-5 visas will be leftover and available to China in FY2020, DOS estimated in October – almost 1,000 more than last year.)

I-526 Timing

For many people, I-526 processing time is the major factor determining the visa wait time. We have three primary sources of information about petition processing times: the USCIS Check Case Processing Times page (which has updates about twice monthly that I log here), the Historical Average Processing Times Page (with annual averages), and the Immigration & Citizenship Data page (which has quarterly updates on processing volume). The sources present this puzzle about I-526 processing times to date:

  • the Check Case Processing page currently reports an estimated time range for I-526 processing of 32.5 to 49.5 months, and has reported times in the range of 27 to 52 months since June 2019;
  • the Historical Average Processing page says that I-526 were pending an average of 19.8 months in FY2019;
  • the January 2020 Visa Bulletin has a final action date of May 1, 2018 for India, suggesting that there are Indians who filed I-526 21 months ago and already at the visa stage
  • the Immigration & Citizenship Data page last reported 13,000 I-526 petitions pending as of June 2019. That workload could possibly take 3-5 years to process only if USCIS processed fewer than 4,000 petitions a year going forward. But as recently as 2018, USCIS was processing that many I-526 every quarter.

Looking at the puzzle (and at my charts below, which plot the bi-monthly processing time report updates against the reported annual average), I incline toward the theory that USCIS started, mid-FY2019, to inflate the months reported on the Check Case Processing page to discourage complaints and inquiries, not because the average I-526 petition has been or will be pending 3-5 years. But we’ll have a better sense of the processing reality when more recent volume numbers get published. I hope that USCIS processing improvements will be a major focus of efforts in 2020 to improve EB-5 program integrity and viability.

Visa Timing by Country:

EB-5 investors today can expect to apply for a visa promptly upon I-526 approval, unless they are from China, Vietnam, or India – countries whose demand currently exceeds the 7% of annual EB-5 visas available to each country under the country cap. The country cap adds a constraint to the EB-5 process, creating backlogs and wait times for high-demand countries while keeping the path clear for new applicants low-demand countries. This status quo has been challenged by the Fairness for High-Skilled Immigrants Act. H.R.1044 passed the House in July 2019 (365 – 65), and Senator Mike Lee has worked tirelessly since then to push the companion S.386 in the Senate, negotiating his way progressively through blocks from Senator Paul, Senator Purdue, and most recently, Senator Durban. The Fairness for High-Skilled Immigrants Act bill has been around for five Congresses without ever becoming law (with a previous version also passing the House in 2011 before dying in the Senate), so I do not really expect it to pass now. But I also do not ignore the possibility, considering the intense lobbying push in 2019, and the bill’s major consequences. If by chance it passed, the bill would remove the country cap from all EB visas, thus decreasing the EB-5 visa wait for the backlog of China applicants while increasing the wait for people with more recent priority dates. If passed, new EB-5 investors from any country could expect to wait about seven years for conditional permanent residence, based on the size of the total EB-5 backlog. Most people currently awaiting I-526 approval would face a 3-7 year wait for visa availability, depending on priority dates, if the bill passed.

Visa Bulletin

Assuming no statutory change, the January 2020 Visa Bulletin provides the following projections for EB-5 visa availability through April/May 2020:

  • The EB-5 category will remain “current” for most countries, meaning that people from most countries can file visa applications as soon as they qualify, regardless of priority date.
  • The final action date for China “may be possible to advance at a slightly faster pace.” (The China FAD advanced an average of just one week per month in 2019, and is at November 22, 2014 as of January 2020.)
  • The final action date for India will “likely to advance at a very rapid pace until the level of demand increases.” (The India FAD has advanced a year since being set in July 2019, and jumped from 1/1/2018 in December 2019 to 5/1/2018 for January 2020.)
  • The final action date for Vietnam will likely have “limited forward movement.” (The Vietnam FAD advanced 26 weeks in 2019, and has reached 12/8/2016 for January 2020.)

Here are the stories I see behind the Visa Bulletin projections:

  • EB-5 will remain current for most countries, because most countries have fewer than 778 people who could possibly reach the EB-5 visa application stage this year.
  • The China final action date may advance due to an increase in visa supply, but the advance will likely be slight due to concurrent increase in visa demand. DOS expects to have nearly 1,000 more EB-5 visas to give China in FY20 than in FY19, as discussed above. Greater capacity would help the queue advance more quickly. However, Chinese filed over 3,000 more I-526 in FY15 than in FY14 (13,530 vs 9,722, to be precise). The Visa Bulletin is moving into that filing surge as it starts to accept visa applicants for FY15 priority dates. Greater volume of visa applicants for FY15 priority dates would tend make the line advance more slowly.
  • The India final action date has advanced rapidly because “the level of demand” has been low, and expected to remain so. “Demand” means the number of Indians documentarily qualified for a visa – i.e. with I-526 approval and visa application or I-485 in order. That number is low only because USCIS is slow and erratic with I-526 adjudication. Charles Oppenheim estimates that there were 4,000 to 5,000 Indians in line for an EB-5 visa in 2019 – enough to claim many years of visas.  But about 85% of that queue was stuck in the I-526 stage, and thus not yet qualified to demand a visa. Department of State has 788 visas to give Indians this year. Which of those 4-5K Indians in the queue gets one of the 788 visas depends on which I-526 USCIS can approve this year. So long as USCIS is very slow, only approving a few petitions, and particularly delaying old petitions, the Visa Bulletin will continue to advance the India FAD to open the door for those few who have reached the visa application stage. If USCIS increases volume of I-526 approvals, then more Indians will be able to compete for this year’s visas. In that event, the India FAD will slow its advance, or even move back in time to accommodate an influx of applications with older priority dates. Personally, I expect the India FAD to retrogress this year. Indians filed at least 330 I-526 petitions from January to May 2018, enough to absorb at least a year of visa numbers. Indians filed at least 806 I-526 petitions between April 2017 and May 2018 (April 2017 being the near end of the estimated time range for I-526 processing, according to the current USCIS processing times information page). That’s enough to absorb more than two years of available visas. All that demand will pull the India FAD back, assuming it can ever emerge from I-526 processing.  The Visa Bulletin FAD for India advanced from May 2017 to May 2018 in just seven months, and from January 2018 to May 2018 in just one month – which tells us that DOS simply hasn’t yet received the surge of visa demand that’s on the way from those early priority dates. The 300 or so Indian investors plus family from early 2018 could not possibly have all received visas in December 2019. When the petitions stuck in I-526 processing finally arrive at the visa stage, the visa bulletin will have to recalculate and may retrogress the India FAD.
  • The Vietnam FAD is expected to advance slowly from the current date of December 8, 2016. One would expect the movement to be slow because Vietnamese filed many I-526 in FY2017 – 523, to be precise, as compared with 404 petitions filed the previous year. This higher volume means that FY17 priority dates will take longer to move past the visa window than FY16 priority dates. Meanwhile, many FY17 petitions have completed I-526 processing, and thus the applicants are qualified and ready to claim available visas. However, we can see that the full surge of FY17 demand from Vietnam has not yet hit the visa stage, since the Visa Bulletin Chart B is still current for Vietnam, and USCIS is still allowing applicants to file I-485 using Chart B. That window could close as the pool of qualified Vietnamese applicants grows.

Visa Retrogression

People from China, Vietnam, and India who apply for visas through adjustment of status will be interested in this document, which gives helpful Q&A on visa availability and the I-485 process: USCIS Responses to Questions from the American Immigration Lawyers Association (AILA)

RC List Updates

And to close the year, an update on changes to the USCIS lists of approved regional centers. Note that I update approvals on my blog RC List page (together which such contact info as I can find) and terminations in my Excel Terminations log (together with a log of termination reasons and links to all termination letters posted so far by USCIS).

Additions to the USCIS Regional Center List, 08/27/19 to 12/30/19.

  • EB5 Affiliate Network Southeast Regional Center, LLC (Alabama, Georgia, Mississippi, South Carolina, Tennessee)
  • Plymouth Park Regional Center, LP (Texas)
  • Protogroup, Inc. (Florida) — Reinstated after termination in 2018
  • Southeast Regional Center LLC (Alabama, Georgia)

Filed under EB-5 Statistics

EB-5 form filing fees

December 8, 2019 10 Comments

We have opportunity to review and comment on the U.S. Citizenship and Immigration Services Fee Schedule. The proposed rule was published on 11/14/2019, and comments are due by 12/16/2019.

The proposed rule appeared at a busy time in EB-5 and I haven’t heard much talk about it. But this could be important. Future processing times could depend on today’s fee decisions. And EB-5 processing is a major factor in the future survival and integrity of the EB-5 program.

The fee review asks this important question: what resources does USCIS need to provide adequate service? Considering what has changed since the existing fees were set in 2016, how do filing fees need to change?

The fee review reports that the work associated with EB-5 forms has increased significantly since the last fee adjustment in 2016, but the 2019 rule proposes only minor increases to EB-5 filing fees.

Proposed Rule Table 6 — Completion Rates per Benefit Request*
Form  in May 4, 2016 Proposed Rule in November 14, 2019 Proposed Rule Change
I-526 6.5 hours 8.65 hours +33%
I-829 5.5 hours 8.15 hours +48%
I-924 40 hours 34.95 hours -13%
I-924A 5 hours 10 hours +100%
Proposed Rule Table 19 — Proposed Fees by Immigration Benefit
Form Current Fee (Proposed May 4, 2016) New Fee (proposed November 14, 2019) Change
I-526 $3,675 $4,015 +9%
I-829 $3,750 $3,900 +4%
I-924 $17,795 $17,795 0%
I-924A $3,035 $4,470 +47%

* Completion rates “reflect what is termed ‘touch time,’ or the time an employee with adjudicative responsibilities actually handles the case.”

How do we feel about this fee proposal? To me, that small fee increase over 2016 looks like bad news. A 9% fee increase for I-526 does not look equal to addressing the 33% increase to per-form touch time, not to mention the 100% increase to I-526 processing times and 50% decrease to processing volume that occurred between 2016 and 2019. If the labor to adjudicate Form I-829 has nearly doubled since 2016, how will a 4% fee increase give resources to handle that? Does the 0% increase to the I-924 fee indicate that USCIS considers the currently-posted 62 to 115-month I-924 processing time acceptable?

The fee rule aims “to determine the USCIS resources needed to process benefit requests within established adjudicative processing goals.” The rule does not disclose what processing goals it uses. But the goals can’t differ much from the status quo, if the rule expresses little need for additional resources for EB-5.  (To review the dire status quo: according to the current Check Case Processing Times page, a petition is only “outside normal processing” after 1,527 days for I-526, 1,339 days for I-829, and 3,452 days for I-924. But, side note for people filing Mandamus complaints, note that the Historical Processing Times page has a quite different statement of average processing times in 2019.)

I don’t only worry that proposed fee increases are not proportional to the reported increase in work per form. Total revenue is also a concern. Revenue equals price times quantity. If form fees stay about the same, and receipts plummet, then USCIS will have a smaller and smaller EB-5 budget to work with. The fee review estimates $83 million average annual revenue from proposed EB-5 fees, assuming about 19,000 EB-5 forms get filed in FY2019/2020. (This is summing I-526, I-829, I-924, and I-924A.) In reality, annual average EB-5 receipts were only about 10,000 for FY2018/2019 per USCIS data, and will be even lower going forward assuming that the law of demand holds following the doubling of the EB-5 investment amount. The picture won’t be pretty, if IPO ends up having less than half the new fee revenue that it expected, while still needing resources to adjudicate years-worth of pending forms on top of new receipts.  I wonder if the terrible performance we saw at IPO in 2019 wasn’t linked in part to low revenue due to dropping receipts, even as workload remained heavy due to pending petitions. (Sadly, there’s apparently no GAAP revenue recognition principle for USCIS accounting.) And the fee-setting methodology employed by USCIS apparently assumes that for any given year, receipt volume = workload volume. That’s not the reality for EB-5, given long processing times and fluctuating but generally falling demand.

In commenting on the proposed rule, I’m inclined to advocate for much higher EB-5 form filing fees. That considers the current unacceptable processing situation, and assumes that future resources depend on future fee revenue.  But I can see other arguments. EB-5 fees are linked to EB-5 adjudication costs in theory, for calculation purposes, but not necessarily in reality. If EB-5 fee revenue increased, that might buy more resources to improve EB-5 adjudications. Or the added revenue might help subsidize fee-exempt forms, get appropriated for ICE, or cover other USCIS shortfalls and overhead.  Even if the increased EB-5 fees stayed with EB-5, a new petitioner wouldn’t technically be paying the cost of her own adjudication, but helping to cover the cost of adjudicating the 20,000+ EB-5 petitions still pending from previous years. I see the unfairness in calculating fees for the incoming few at a rate needed to subsidize the cost of adjudicating the many still pending. (Though I also don’t see an alternative.)  Furthermore, one could argue that the longer completion times and ballooning processing times aren’t due to lack of adjudicative resources, but to bad policy and management that should be addressed before increasing fees. And finally, it’s possible that although the proposed rule invites public comment, it’s actually to late too influence decisions about resource allocation. I don’t know. But for those interested in this topic, I welcome your thoughts. Here is a draft of a comment that I wrote, and shared with IIUSA. This comment has not been submitted to USCIS, and I welcome input, objections, corrections, and improvements before the submission deadline. At least I’m sure that we shouldn’t miss the chance to speak to USCIS about the critical issue of processing. USCIS has long way to go to achieve its goal “to recover the full operating costs associated with administering the nation’s immigration benefits system, safeguarding its integrity, and efficiently and fairly adjudicating immigration benefit requests, while protecting Americans, securing the homeland, and honoring our country’s values.”

Filed under EB-5 Law & Policy