I-526 processing context, 2017-2019

On Friday 3/13, USCIS will hold a meeting (now by teleconference only) that promises to “address program updates, including the agency’s change from a first-in, first-out case-processing approach to a visa availability approach for Form I-526.”

I look forward to being pleasantly astonished when USCIS provides substantive, detailed information at the meeting, and answers questions. (By the way, USCIS recently posted an unannounced new page with Questions and Answers: EB-5 Immigrant Investor Program Modernization Rule. Note that this page includes some guidance not previously provided regarding targeted employment area analysis.)

In the meantime, as we face the visa availability approach to take effect as of April 1, 2020, another post with context for the I-526 processing adjustment.

EB5 Diligence/EB5 Marketplace has posted a helpful podcast: Analysis of Visa Availability Processing and March 13 USCIS Stakeholder Meeting. The discussion features a wide range of industry perspectives on what the visa availability approach means, and its potential benefits and downsides in practice.

As additional background, I’ve created a compendium of things that USCIS has disclosed about EB-5 processing leading up to the change.

First, a picture of the data for EB-5 form processing in recent years.

And a log of recent statements made by USCIS/DHS to explain what’s happened to date with I-526 processing.

  • Factors related to long processing times and low volume of I-526 adjudications in 2019:
    • “Complying with court orders related to the EB-5 program” (5/13/2019, USCIS letter)
    • “Temporary assignment of IPO staff to other agency priorities” (9/9/2019, Kendall)
    • Adjudication time lost due to I-526 training in May 2019 (10/29/2019, Kendall)
    • Disruption to processes due to regional center program sunset (12/22/2018-1/25/2019) (10/29/2019, Kendall)
    • “IPO has made structural changes to ensure continued program integrity” (10/29/2019, Kendall)
    • “More robust quality assurance and control programs” (10/29/2019, Kendall)
    • “A growing number of cases where we have worked with our law enforcement and other partners, including the SEC, related to civil and criminal investigations” (10/29/2019, Kendall)
    • “We also work with USCIS and Department of State officials abroad to perform overseas verification checks on various questions that arise in our petition pool, such as for source of funds and other key elements of the program” (10/29/2019, Kendall)
    • “In the next year [2019] we anticipate putting additional resources to the I-829 so that we can address the needs of the particular line of adjudication.” (10/5/2018, Kendall)
    • The average touch time per I-526 had increased to 8.65 hours by 2019 (+33% since 2016) (2019 fee rule as compared with 2016 fee rule)
  • Factors in the higher volume of adjudications in 2018:
    • At the end of 2017, IPO launched multidisciplinary teams of cross-trained economists and adjudicators to focus on I-526 adjudications (11/7/2017, Harrison)
    • In 2018, IPO focused on standardizing and better managing assignment of EB-5 cases (5/11/2018 USCIS response)
    • “I believe that this [increase in our productivity in 2018] represents that it was a good decision for the leadership here to invest additional resources in the program. We are fully staffed now. And with the normal continuing rotation of having to hire to replace people that are moving on, right? But we are fully staffed and we anticipate that we will continue to be as productive and we’re aiming to be more productive. I say that within the limits of the parameters for integrity that the Director has laid out and that you all have embraced in your discussion with us. So the productivity on the 526s was very good this year. But we’re not sitting on our laurels. We recognize that this is a business community. There are business There are people, the individuals behind every application. And that the credibility of that application’s likelihood of being adjudicated in a timely way is important. So we hear you. And the agency has made long-term investments to make sure that we can reasonably manage the work load that comes in.” (10/5/2018, Kendall)

Other context factors:

  • The IPO staffing level has increased from 110 as of February 2016 to 185 as of July 2017 to 212 as of September 2019.
  • Government Executive reported in February 2020 that “The Trump administration has issued a hiring freeze for non-asylum officers at U.S. Citizenship and Immigration Services.”
  • The latest fee rule, which sets filing fees to fund resources for adjudications, did not propose significant increases to EB-5 form fees. (2019 fee rule)
  • IPO mentioned the idea of a visa availability approach in 2017, and asked for stakeholder input. (11/7/2017, Harrison) The data from Department of State and USCIS does not show that IPO started to implement a visa availability approach before this year, though obviously adjudications have not been simply FIFO.
  • The theory of FIFO processing for immigration forms goes back to the Operations Instructions of legacy-INS at OI 103.2(q), which provided: “(q) Chronological processing of applications and petitions. To deal fairly and equitably with applicants and petitioners, it is Service policy that cases be processed in chronological order by date of receipt.” The Check Case Processing Times page for I-526 still says “We generally process cases in the order we receive them.” And the Adjudicator’s Field Manual instructs careful receipting for petitions because “The receipt date is important to ensure fair, chronological processing.”
  • Since 2015, I have kept a log of public comments by USCIS about I-526 processing factors in this Word file and a log of monthly processing times reports for I-526, I-829, and I-924 in this Excel file.

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.

14 Responses to I-526 processing context, 2017-2019

  1. Nervous about the future says:

    This is a fantastic recap of the processing volume roller-coaster ride we’ve been on (and still are on). Thanks!

  2. Jumanji says:

    Hi Suzanne,

    Anything positive us worth knowing after today’s call? So dejected with the process up until now with things seem to be getting worse.

    • I’m struggling with dejection myself, as I consider the challenge of responding constructively to today’s call. I’ll post some comments and my recording later today.

      • Jumanji says:

        Uh oh! I was hoping for something positive. The more direct you are with us in your observations, the better expectations can be set even if that means continued dejection. We just want the truth and reality of the situation. Thank you!

  3. Karan Singh says:

    Hi Suzanne,

    Keenly waiting for your update on the call today. As per what I could gather, visa availability wise India would be current by summer of 2020 due to diminished demand, but I am keen to know if anything about adjudication of pending I-526 cases was addressed or not.

  4. Karan Deep Singh says:

    Hi Suzanne,

    Keenly waiting for your update on the call today. As per what I could gather, visa availability wise India would be current by summer of 2020 due to diminished demand, but I am keen to know if anything about adjudication of pending I-526 cases was addressed or not.

    • V J says:

      Hi Suzanne i was in Que yesterday but did not get a change to ask.
      my question is similar, any pending I-526 before the visa availability date would be adjudicated first or not ? i am Indian

      • Indian says:

        Sarah clearly said they will use chart B (filing date chart) for prioritizing adjudication of I-526 applications. So yes they will prioritize I-526 adjudication before visa availability date. Sarah said they will prioritize applications that are current for filing or nearing the current for filing date.

        For Indian investor the filing dates are current so India applications are candidate for prioritized processing for foreseeable future. Of course in general they will process older Indian petitions ahead of newer petitions but the whole India queue will be prioritize over China.

  5. DK says:

    Today’s meeting was very vague and as expected, USCIS and Ms Kendall were not very forthcoming with I-526 numbers for pending applications nor for any clear updates regarding how fast they will work towards reducing the backlog.
    My take on the new visa availability process is that applications from China will bear the full brunt while countries like India and Vietnam will be ok at least till mid 2022. Vietnam will benefit from the excess spillover of visa’s if COVID-19 forces shutdown of counsellor processing in China for extended period.
    Indian demand is going down and by mid summer, India will be current at least for a short period and can retrogress again if sizable number of I-526 are approved.
    All other countries might see uptick in their -526 processing although timeline for adjudication is still unclear.

    • That’s basically my takeaway as well, though I want to think more about that mid 2022 estimate.

      • Jumanji says:

        So basically nothing came out of it except that China I-526 processing will virtually be zero for the next few years and there’s something positive for Indian applicants in terms of their I-526 being processed somewhat faster. Correct?

        • Devika says:

          Could you please share what was “positive” for Indian applicants awaiting I-526 processing. Thanks.

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