I-526 backlog by country and priority date

Last week USCIS announced a process change for I-526 adjudications, replacing the (nominal) first-in-first-out approach with a “visa availability approach” that gives priority to petitioners from countries who have visas immediately available, or soon available. This replaces a system that depends on I-526 priority dates with a system that depends on priority date plus country of origin.

To interpret the change, we need to know the composition of the I-526 backlog, by priority date and country of origin. IPO can, at any time, print out and publish a report of this data. IPO did this once, in October 2018, then deleted the report. IPO now refuses to disclose current data for the currently-pending I-526 itemized by petitioner country and priority date month/year. Why? There are obvious wicked reasons – intent to obscure processing, or gratuitous naysaying – and no good reason that I can think of. Please, reconsider, IPO.

In absence of answers direct from USCIS, here’s my estimate of the I-526 inventory as of October 1, 2019. (I can’t guess for a more recent date, not knowing anything about I-526 receipt or adjudication numbers since October.)

The total inventory estimate (Column A) should be nearly accurate, because it’s based on a Department of State applicant estimate that we can deconstruct into a pending petition estimate, with a few given clues. (Calculation and sources at the base of this post.)

Columns B, C, and D would be nearly accurate, if processing since October 2018 had been FIFO as USCIS claims. (According to the October 2018 pending petition inventory report, 4,630 petitions had priority dates earlier than March 2017, and 9,583 petitions had priority dates from March 2017 to September 2018. USCIS processed 4,673 I-526 from October 2018 to September 2019. So if USCIS processed the oldest petitions first, the remaining inventory as of October 1, 2019 should have no pending I-526 left from before March 2017, while all priority dates since March 2017 would still be pending. Reality contradicts the FIFO theory, judging by the I-526 processing times report and individual experience.  But I leave the theoretical calculation in Table II as a reference, until USCIS finally consents to give us the real numbers.)

Look at my estimated I-526 inventory above, and imagine the difference a “visa availability approach” will make once it starts being implemented in April.

If IPO is guided by the current Visa Bulletin Chart B (where China is in 2014, and all other countries current), then it would take only China I-526 off the table for now. That would cut about 6,000 petitions from the current workload.  At the other extreme, If IPO is guided by Charles’ Oppenheim’s long-range estimates for visa availability, then it could remove the following from the table for now: China priority dates from 2015 on; Vietnam priority dates from 2017 on; India priority dates from 2018 on; and South Korea, Taiwan, and Brazil priority dates from 2019 on. That would cut at least 9,800 petitions from the active inventory.

The impact on I-526 wait times, for majority and minority countries, will depend on how IPO interprets visa availability – but even more, on IPO’s decisions about volume of adjudications. If IPO exercises its ability (proven in 2018) to adjudicate over 15,000 I-526 per year, then minority-country I-526 can all be processed in a few months, and majority country petitions not far behind. But last year, IPO approved only 3,660 I-526. If that low performance level continues into the future, then IPO could use up its entire capacity for the year just working on minority-country petitions. That would significantly delay majority country-petitions. (Perhaps not coincidentally, 3,660 is almost exactly the minimum number of annual I-526 approvals needed to produce enough applicants for the 10,000 annual visa quota, given the historical average visas per principal. I hope IPO isn’t taking the visa quota as an excuse to shirk I-526 adjudication responsibilities, take resources away from I-526, and let the backlog of fee-paid petitions gather dust as long as can possibly be excused by visa waits.)

Theoretically, the I-526 wait time ( w ) for a petition equals inventory (i) of petitions with priority to get adjudicated earlier than that petition, divided by number of petitions that can get adjudicated per period (t). w=i/t  The visa availability approach changes i – making it smaller for minority countries and larger for majority countries, with obvious results for w. For what it’s worth, I can calculate i for different countries and priority dates, and quantify the effect of FIFO vs. visa availability approach on i.  But my EB-5 timing estimates page is still empty for the moment, as I don’t know what to make of t. Was last year’s very low volume an aberration, as IPO Chief Sarah Kendall suggested when asked about it last year, or a new strategy to be continued? I hope we can get some sense at the stakeholder meeting next month.

And finally FYI, the detail of my I-526 inventory estimate above. The sources: Department of State report of EB-5 Applicants with Petitions on file at NVC and Estimated USCIS Applicant Data as of 10/1/2019 (slide 8 in this IIUSA presentation), Department of State report of average percentage of EB-5 principal investors in visa applications (slide 15 in this IIUSA presentation), USCIS’s FY2019 quarterly I-526 data report (linked here), and the log of pending petitions as of October 2018 (my version of the file formerly posted on the USCIS website saved here).

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About Suzanne (www.lucidtext.com)
Suzanne Lazicki is a business plan writer, EB-5 expert, and founder of Lucid Professional Writing. Contact me at suzanne@lucidtext.com (626) 660-4030.

33 Responses to I-526 backlog by country and priority date

  1. Lakshmi says:

    I hope USCIS processes all pending cases and let them get at least work permit so that they can wait for the GC as and when Visa’s are available. This would give the direct investment owners to manage their business in person and others to continue in the valid visa with work permit. Main land applications are exception as they have retrogression.

  2. Kobus says:

    Suzanne, the comments from the Oppenheim update (https://iiusa.org/wp-content/uploads/2019/10/IIUSA_Visa-Update-w-Charlie-Oppenheim-and-Roundtable-Discussion.pdf) states specifically:

    “Wait time estimate is the number of years between the time an I-526 petition is
    filed on October 29th, 2019 and the time when an EB-5 visa is likely to be
    available based on current number use patterns. These estimates include the
    processing time of adjudicating an I-526 petition.”

    Then a time of 1.4 years is shown for Brazil (for instance).

    That means, worst case scenario (term used by Oppenheim), an investor from a country that is not listed who filed on 29 October should receive a visa number in *less than 1.4 years from date of filing an I-526*, since “These estimates *include* the processing time of adjudicating an I-526 petition”.

    ie. the wait times you list include I-526 adjudication time.
    So I-526 adjudication time for someone from say Brazil should be (at least 3-4 months) less than 1.4 years.

    Is mr. Oppenheim implying average adjudication times of less than a year (for applications filed in October)??

    Or am I once again misinterpreting the text?

    • “Is mr. Oppenheim implying average adjudication times of less than a year (for applications filed in October)?”
      He wouldn’t have intended to imply anything about I-526 adjudication times, because I-526 processing is outside the control of Department of State. He is just making a statement about the time between priority date and visa availability, specifically as constrained by visa availability (which is a DOS issue), not as constrained or influenced by I-526 timing (which is as USCIS matter, not a DOS matter). I-526 processing occurs between I-526 filing date and visa availability, but how I-526 processing fits within that space just depends on USCIS.

  3. indian says:

    Thank you Suzanne for yet another awesome post.

    For the new process of managing I526 adjudications USCIS said “… change is consistent with the agency’s processing of Form I-130”.

    I think I-130 process is well established for several years and USCIS is clear in saying they will use this process. I am wondering if you could please use this input in your post. If you decide to use this important input things get a lot more clear.

  4. Cecilia says:

    Thank you Suzanne. Great post, as always!

  5. Bappi says:

    We applied on sep 2018, but till now don’t have any idea about estamited time of approve date . My country is Bangladesh. Can you help me to do so. My family always awaiting for ur valuable post every time.

    • I guess that the adjudication will come by mid 2021 at latest, but maybe as early as this summer. It depends on how many total I-526 can be processed this year, and how many I-526 from majority countries will be set aside due to the visa availability approach. I may have a better estimate after the March 13 meeting.

    • Ashish Choudhary says:

      We had filed in Feb 2017 and still awaiting adjudication. I have heard they still have cases from late 2016 pending to be adjudicated.

  6. hiral says:

    thank you suzanne for wonderful updates about eb-5..
    i think you provide one of the best informations when it comes to eb-5 news.
    i am following your post since long and try to read almost all posts..but some how interpretations for a layman like us is sometime difficult.
    according to what i have understood the concept of priority date is changed to visa availability, but in this case how long one has to wait who has applied in september 2019? any guess…

    • I guess that the I-526 wait time for someone who applied in September 2019 can be either a few months or many years. The wait will depend on:
      (1) how many I-526 USCIS will process per year (based on recent history, could be as many as over 15,000 or as few as under 4,000)
      (2) how USCIS plans to apply the visa availability approach
      I hope that the March 13 stakeholder meeting will give some clarity on both these factors.

  7. jacob says:

    Dear Suzzane! Thank you for the update.
    Correct me if I am interpreting this wrong. I believe the change of 526 approval from first come first serve to visa availability per country is a good thing. The processing time will definitely decrease and 526 approval will be faster for countries except for china mainland. Even applicants who are stuck in line from Vietnam and India will benefit from this policy change. What are your thought?

    • I have used so many words over these two weeks to explain my thoughts: that that this is not a good thing. I thought I showed why processing times will not necessarily be faster for countries other than China (because priority is not the major input to processing times, not to mention that this creates an excuse for delay that can just as well be applied to Vietnam, India and other countries), and gave compelling examples that show how processing delays create issues that are bad for everyone — even for people who can take advantage of the one benefit of delay: increased child protection. But I guess I used too many words. Sigh…. I have failed…

      • V J says:

        they says but they are not processing first come fists serve, my priority date is September 2017, but still pending and their are more older priority dates are still pending where as I came to know threw blogs there are many more got processed whose date were more recent. means some get unexpectedly benefit and others unfairly delayed.

      • tpk129 says:

        Suzanne…you seem to be agitated with us for not understanding what the fuss is really about. You know nuances of the system that we don’t, but most of us see it this way-

        Assume I’m from Sweden and file for an EB-5 visa. There isn’t a wait list so why should I wait for two to three years to have my application processed so Chinese applications can be processed ahead of me and then put on a shelf to wait for 10 years. This is a good situation for me as waiting longer for mine doesn’t appear to serve any purpose. We view it thru this lens…can you tell us in simple terms why this isn’t correct?

        If you tell me there is going to be a staff reduction, that would be a different story. But my reading of criticisms is of hypothetical situations and twisting oneself into a pretzel to say it is wrong.

        There does appear to be a disconnect here and shame on us if we’re dense and don’t get it…but I submit if the boy from Sweden above gets his visa timely and the Chinese get there’s as scheduled, albeit 10 years out, this is a good system.

        • With this change, USCIS is asking to normalize long processing times for some petitioners. If people like you roll over and say “sure, fine, wouldn’t hurt,” then we lose the processing battle. USCIS can then justify having moved resources away from I-526 adjudication, and continuing to process a minimal number of I-526. That’s why I’m jumping up and down and waving my arms and saying No No No!!! Don’t surrender! Don’t forget that USCIS has proven capacity to provide timely processing to all I-526, if only we push them to use that capacity! Especially since, if you think about what specifically goes into I-526 adjudication and evidence requests, they really need timely attention, and become more unapprovable the longer they wait.

          • tpk129 says:

            OK…so you’re assuming a staff (resource) reduction. Would agree with your premise then, but the mere fact that applications are processed giving priority to those with out wait times isn’t a bad thing if resources are retained and used efficiently. Right?

          • USCIS already in 2019 slashed I-526 resources by 50-70%, but failed to provide an excuse or explanation for that move. Now the “visa availability approach” appears as an excuse and explanation to continue that going forward. Do you want to let them have it?

          • tpk129 says:

            The headline should be…USCIS slashes EB-5 processing budget!. The processing order has changed as a result of the budget cuts and shouldn’t be the headline. How it has been presented confused the dickens out of many of us.

            No we don’t want the staffing decreased…but that hasn’t been put forth clearly as the primary issue.

            We don’t need to go back and forth anymore as I get it now!

          • CJ says:

            I’ve applied from a European country and see this change of processing order positive for my personal situation as well

            I understand that the real issue is the reduction of resources overall, but isn’t the reduction an action that was taken many months back and not recently?

            Expected processing times increased on USCIS website first half of 2019 (though many suspected they were just getting more conservative to reduce email inquiries). Stats released early January then showed that applications processed had indeed significantly gone down.

  8. Sri says:

    Hi Suzanne, thank-you for this analysis. I know you already answered this question but wanted to ask the question in a different way. Now with this new rule will they be picking up cases whose PD is before 9/1/2018(for India) for processing? Which is an advantage to Indian Nationals whose PD is before 9/1/2018, right? Please let me know if my assumption is correct

    • It depends on how IPO decides to determine who has visas “available.” I asked USCIS about this in my post of questions regarding how the approach will be implemented. Copied from the questions post

      Circumstances: India has been “current” in the Visa Bulletin Chart B Dates for Filing, which means that Department of State considers all Indian priority dates to be “within a timeframe justifying immediate action in the application process,” and USCIS has been accepting I-485 for all India priority dates. Meanwhile, the Visa Bulletin Chart A Final Action Date for India is September 1, 2018. Charles Oppenheim predicted that in the next few months, this date could either progress to being “current” (best case scenario) or retrogress to November 1, 2017 (worst case scenario). [1]

      Implications: Considering this, starting in April 2020, will IPO:

      — Let all India I-526 stay in the queue together with current countries for FIFO adjudication, since the Visa Bulletin Chart B signals that that all Indian priority dates are currently“within a timeframe justifying immediate action,” and Oppenheim predicted that India could be current in the Visa Bulletin Chart A in October 2020; or
      — For now, shelve India I-526 with priority dates more recent than November 1, 2017, since Department of State predicted that could be the worst case cut-off for India visa availability by October 2020; or
      — For now, shelve India I-526 with priority dates more recent than September 1, 2018, since these dates are not authorized for visa issuance per the current visa bulletin. Then react month-by-month to future visa bulletin date shifts; or
      — For now, prioritize India I-526 with priority dates older than September 1, 2018, since these dates are authorized for final action per the current visa bulletin (in the spirit of the stated goal to make each country “better able to use their annual per-country allocation of EB-5 visas”).

      • Darshan says:

        Hi Suzanne,

        Without further details from USCIS and putting aside pros and cons of this move, i make the following interpretation about “visa availability”. See what you think.

        Quote: “This will help ensure that the maximum number of immigrant visas are issued annually as intended by Congress” https://www.uscis.gov/archive/uscis-announces-revised-procedures-determining-visa-availability-applicants-waiting-file-adjustment-status

        Assume a scenario where USCIS does not create this “visa availability” rule. Given the reduced 526 processing output, it could have created a situation where USCIS processed 1000 petitions for a country which does not have visas available based on the priority dates. This works exactly against the above quote because it had the potential for DOS under-utilizing 10000 visas.

        By changing to a “visa availability” approach, USCIS avoids the above scenario. Hence i do interpret that if your priority date is current, it means “visa available”. Else there is no point to any of this.

        • This makes sense, and supports my basic suspicion that this change is designed to accommodate and justify reduced processing output. But reduced processing output is not a given — it was a management decision to move resources away from I-526, though IPO’s total resources are not lower than before, and I don’t think stakeholders should accept that decision.

          • Darshan says:

            I agree with you and in an ideal world, the 526 processing volume should go back up but the “stakeholders” have been subject to whims and fancies of the US Govt across many EB categories and it is not clear what choice we have but to accept.

  9. Sri says:

    Thankyou Suzanne for your prompt reply. Hopefully they will clarify these in the next meeting.
    Have another question, what is this Expedite request and what is the process for getting approval of the expedite request?

  10. amie says:

    Thank you so much Suzanne! Have a few questions regarding this change:

    Does this mean they will never process i 526 after 2015 from China? Unless they clear up all other country’s applications/backlogs?

    What if the bill that removes country cap passes, and how will that affect the situation for China based on this change?

    Appreciate your opinion!

    • Regarding China, the answer to your question depends on the answer to an implementation question. I tried these different ways to pose the question to USCIS, hoping they might answer one:
      Does the visa availability approach aim to limit adjudications to individuals with visas immediately or soon-to-be available? (In other words, does IPO aim to match a petition’s I-526 wait time to the visa wait time, however long that may be?)
      Does the visa availability approach aim to adjudicate only enough I-526 annually to claim annual visas available under the country caps? If so, what processing time and visas-to-I-526 assumptions will IPO use to choose how many I-526 to adjudicate?
      The visa availability approach intends to “give priority to petitions where visas are immediately available, or soon available.” Does it also, conversely, intend to delay I-526 for petitions where visas are not soon available – not only incidentally as a side effect of taking current countries first, but as a strategy to match I-526 wait time to visa wait time, providing a justification to reduce the volume of petitions that call for timely attention from IPO? If IPO clears the backlog of pending petitions from current countries, will it move resources away from I-526 adjudications, leaving I-526 from non-current countries to wait, pending visa availability?

      If the country cap bill passes, then visa availability=FIFO, so visa availability would give no alternative to FIFO I-526 adjudications in that case.

      • Dkat says:

        So based on the FY2019 Annual report by USCIS, total of 9,478 visa were given to all countries. Are we missing something here ? We have a situation where there is a backlog and retrogression for few major represented countries but USCIS still choose to under utilise total number of visa’s at it’s disposal ?
        Those 500 remaining visa could have been Yuge benefit to China or any other country not reaching it’s 7% cap. Unfortunately, India was awarded 760 visas so they had no chance…

        Click to access FY19AnnualReport-%20TableV.pdf

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