I-526 processing times: volume and priority (Comment 1 on the “visa availability approach”)
January 29, 2020 17 Comments
I’m in my car at the terminal, waiting to board the ferry. There are 15 cars waiting. The ferry can hold 15 cars. The deck hand comes out and tells the cars to reorganize. “We’re not doing first come first up anymore – today we’re boarding day-trippers first.” I’m puzzled – why this bother? Why are they troubling to rearrange the cars, when in any case there’s room for everyone to board? Are they fussing about priority because they’re reducing the ferry capacity, and preparing to leave some cars behind?
I’m an EB-5 investor today with an I-526 pending. Say there are about 15,000 other I-526 petitions pending now. (There were just 13,763 pending at last report as of 9/30/2019.) We know IPO adjudicated over 15,000 I-526 petitions in FY2018. 15,000/15,000 = 1. Calculating from IPO’s proven capacity for adjudications, all pending I-526 can be processed and to the visa stage in about one year. Whether the adjudications are in FIFO order, or in order by country, or alphabetical, or totally random, I-526 wait times from today will all be about a year at very most for anyone and everyone in the current backlog (and even shorter for new petitions in an era of low receipts), if IPO does its job and uses its capacity. In that case, all minority country petitioners will reach the visa stage in time to claim annual visas, regardless of how IPO orders I-526 from China, Vietnam, and India. If IPO has proven capacity to clear the entire current backlog in a year, why does it now announce a new policy for choosing which I-526 get “approved in a more timely fashion to receive consideration for a visa,” going forward? Why not adjudicate everyone in a timely fashion, when that’s a plausible option? Are they fussing about priority because they’ve reduced capacity, and gathering excuses to leave petitions behind?
Today’s press release “USCIS Adjusts Process for Managing EB-5 Visa Petition Inventory” provokes us to focus on the order of I-526 processing, and who should get attention first. But why even accept that discussion before pointing out the more significant factor: volume of processing. Petitioners from traditionally underrepresented countries are not threatened by pending I-526 petitions from China, Vietnam, or India, when there’s room on the I-526 ferry for everyone. The threat is the processing volume trend line. USCIS has not explained how it’s fair to reduce the size of the ferry, and carry fewer and fewer people to the visa stage.
For people from China, Vietnam, and India, a potential perceived benefit from a “visa availability approach” is extended child status protection. (Such a benefit could emerge if USCIS is proposing to not only prioritize not-backlogged countries, but actually to shelve I-526 from backlogged countries until visa availability, be that 1 year or 15 years. regardless of other country demand. The press release isn’t clear on this point.) Some people might welcome an artificial delay for the children. But think about it: how much do frozen children benefit when the petition upon which they depend becomes less and less possible to approve – or indeed, even to adjudicate – as the years pile up? Businesses do not freeze, financial records don’t last forever, USCIS policy continues to evolve, and every year adds to the changes of fact and circumstance that can cause an I-526 to be denied. Such factors may contradict this point: “For many nationals of countries subject to retrogression, the I-526 petition processing time is largely irrelevant unless the primary applicant has a dependent child approaching the age of 21, in which case, this new processing approach can be extremely helpful.” The adjudication time is relevant when it make a significant difference in whether or not the petition will be approved, when it’s finally adjudicated. Not only that, but I-526 approvals bring some protection – they establish priority dates, open the possibility of priority date retention with project change, and offer protection in case of legislative changes. Those benefits are especially important to people facing long visa waits regardless. And furthermore, timely I-526 adjudications judge the petition on its merits at the time of filing, and consistent with its very nature as preliminary-stage filing. Delayed adjudications effectively create a new stage with new requirements – as we see today from RFEs on delayed petitions that request years of documents not available at the time of filing, and traditionally belonging to the I-829 stage rather than preliminary I-526 stage. Meanwhile, for China, a “visa availability approach” has the further complication that it’s explicitly designed to maximize rest-of-the world demand reaching the visa stage, which directly minimizes visa available to China. And India, with its recent visa bulletin jumps due to “low demand” i.e. few I-526 approvals, exemplifies the complication that delays at USCIS actually skew visa availability.
For pending I-526 petitioners who are not from China, Vietnam and India, let’s consider what would help your processing times. If there are 15,000 pending I-526 now, I estimate there are about 5,000 of you. Consider which adjustment you’d rather have USCIS make:
- Address priority: Keep FY19 Q4’s dismal processing volume of 550 adjudications, but prioritize your petitions over the 10,000 from countries that aren’t current. 5,000 minority-country petitions divided by 550 adjudications per quarter equals 9 more quarters to finish processing.
- Address volume: No change to priority, but return to FY18 Q4’s processing volume of 4,000 adjudications. 15,000 worldwide petitions divided by 4,000 adjudications per quarter equals less than 4 quarters to finish processing.
The main point of this post: we should be talking about volume, before priority.
And not only that, but what’s this claim about a “visa availability approach” (a term that made its world premier today, according to Google) aligning with “congressional intent” for EB-5 and with “other visa-availability agency adjudications processes.” I’d like chapter and verse on this “Congressional intent” and how the approach has worked out for other Forms pending at USCIS. And additionally…. But even kind bloggers have to sleep sometimes, and keep time for the day job.
For everyone asking me individual timing questions, please be patient. I’ll get a paid service up as soon as I can, to explain as much as I can individually. With both volume and priority up in the air, it’s complicated and time-consuming.
EB-5 Updates 
Suzanne, I think you should prepare a response on behalf of us stake holders and charge a fee for participation in the stakeholder conference.
I am contributing to a group effort IIUSA response. We’ll see how it turns out. Wouldn’t it be nice if the association valued my contributions so much that it didn’t ask me to pay for the opportunity to make them.
Just donated ( PayPal) to show how much I appreciate your effort! Thanks again!
Thank you for your encouragement and support!
Question – Since the priority date for India is now Sep 2018, does this mean that the new rule only affects those Indians who’ve got a PD of Oct 2018 and later? For example, if the PD is Dec 2017, does this mean that FIFO still applies to all India born applicants and the new rule might make it quicker for those with PD dates of Sept 2018 or earlier?
That’s a good question, and I think the USCIS press release is ambiguous on this point.
Thanks Suzanne. Here’s an excerpt from the article on the National Law Review which prompted me to ask that question.
“Investors who were born in mainland China, Vietnam, and India, but who have a “current” priority date on the Visa Bulletin also should continue to be adjudicated on a first-in, first-out basis. Only those investors currently subject to visa retrogression may receive delayed adjudications on the EB-5 Petition.”
Curious to know how to interpret this….
Thanks Suzanne. Here’s an excerpt from the National Law Review article on the changes that prompted me to ask that question.
“Investors who were born in mainland China, Vietnam, and India, but who have a “current” priority date on the Visa Bulletin also should continue to be adjudicated on a first-in, first-out basis. Only those investors currently subject to visa retrogression may receive delayed adjudications on the EB-5 Petition.”
Hope this means that Indians with PD prior to Sep 2018 will benefit from the changes.
This is ambiguous as lets say USCIS picked a date for case to be reviewed and in next month bulletin, the date backtrack by a year..!! Now your base calculation is gone haywire.!! I guess they would pick up the county that have no ambiguity!! This is going to add more chaos to already broken system..
I don’t think it’s that ambiguous: “The new visa availability approach will apply to petitions pending as of the effective date of the change. USCIS will implement the visa availability approach on March 31, 2020”.
I do think it’s probably irrelevant, by March 2020 there will likely be only 5 petitions filed per month due to high costs combined with slow adjudications leading to high risk. Would be interesting to see 2020 Q1 stats.
You can add in your analysis that you can have a serious discrepancy between the extended processing time and the business cycle of a project. If the project was successful, you have to add the two years of conditional GC that you get when you immigrate before the regional center (RC) can pay back your capital. Therefore, it is not uncommon that your funds will have to be re-invested and locked into another project because of the delay in processing time. Then, your choice is limited to what the regional center will offer. Furthermore, it is my belief that the recent increase in EB-5 minimum investment combined with an extended processing time will reduce greatly the number of I-526 applicants and thus the number of operating RC. Will your RC still exist when you need them for the I-829 application and three to four years later for an eventual RFE?
Note that: “The new visa availability approach will apply to petitions pending as of the effective date of the change. USCIS will implement the visa availability approach on March 31, 2020”.
This means that it will not (or should not?) have an effect on existing petitions.
However, I agree with Suzanne that ideally we would like our petitions to be processed within a reasonable administrative time (i.e. 30-90 days max) and then this new processing order will not negatively impact anyone.
The reason for EB-5 USCIS delays seems to be political in nature (i.e. DACA and asylum petitions are getting more processing time due to court action).
The message we as investors are getting is that it is more acceptable to “jump the fence” than follow a legal process and investing the the country you are moving to.
Incidentally, I had to submit a new petition after 3 years of waiting (and therefore start at the back of the line again) since the first project did not pass USCIS muster for some obscure reason.
Maybe the situation is ripe for some form of class action from EB-5 investors as well.
Thank you for your comments. I read “will apply to petitions pending as of the effective date of the change” to mean that it will effect existing petitions that were filed before the change, but still pending on March 31, 2020. (And as a sideline, there’s some evidence that USCIS has in fact already been implementing this change to some extent, but just now making it official.)
Makes sense if you interpret it that way. It’s indeed ambiguous.
@KOBUS “”The reason for EB-5 USCIS delays seems to be political in nature (i.e. DACA and asylum petitions are getting more processing time due to court action)””””. source please?
https://www.aila.org/advo-media/whats-happening-in-congress/congressional-updates/uscis-responds-to-bipartisan-senate-letter
This is from a response by USCIS to a congressional inquiry (May 2019).
I copy the relevant bit here:
“Another cause for delays in processing can be increased litigation. For example, USCIS
Service Center Operations is complying with various court orders, including a court-ordered
continuation of accepting and adjudicating certain requests for Deferred Action for
Childhood Arrivals (DACA), and the USCIS Field Operations Directorate is complying with
court orders related to the EB-5 program and supporting litigation efforts related to military
naturalization and other programs.
USCIS is also under an injunction related to Employment Authorization Documents (EAD)
for asylum seekers. Due to the surge of asylum applications over the last several years, we
cannot keep pace with the regulatory requirement to adjudicate employment authorization
requests within 30 days. As a result of the injunction, we have been forced to move
adjudicators off other caseloads to comply with the order and expedite processing of
employment authorization documents for those who seek asylum.”
USCIS is apparently making the programme more unfair. This is kind of making me sick of US goverments more and more.
There are tons of measures that USCIS can do to make the program better, for example, to stop oversuscription, to pre-review I829 job creation. But they won’t.
USCIS is trying to help the RCs to keep Chinese investors money forever and even don’t want to look at their I526 application. Then why don’t they stop to accept Chinese investors’ appliation?
Really shame, shame on them!