EB-5 Impact of COVID-19 (processing, eligibility, visa numbers)

EB-5 Processing at USCIS under COVID-19

USCIS has continued to process Form I-526, I-485, and I-829 during the pandemic, since this processing generally does not involve public contact. Domestic USCIS offices that were closed to the public are now slated to re-open on or after June 4, and USCIS continues to offer deadline extensions for RFE and NOID notices issued between March 1 and July 1 (per the latest update to the USCIS Response to COVID-19 page). No EB-5 form processing data has been published yet for 2020, but individual reports suggest a steady flow of EB-5 decisions throughout 2020.

Possibly the most important COVID-19 impact for EB-5 processing involves lawyers. In 2019, the Investor Program Office at USCIS simply dropped the ball on adjudications, becoming FOUR TIMES less productive than previous years, and they got away with it. But in 2020, EB-5 lawyers have little to do and few ways to make money except to convince EB-5 investors to file Mandamus and APA actions to sue USCIS to do its job. With unreasonable delay being so blatant in EB-5, especially in the wake of the 2019 processing meltdown, USCIS does not have a good defense against these suits except to finally adjudicate petitions. The logical defensive strategy for IPO now would be to buckle down and work as hard as they can to clear the delayed backlog that’s inviting and justifying the blizzard of lawsuits. And that may indeed be what’s happening. In the meantime, I have an article forthcoming on the USCIS processing times reports, and my Timing Estimates service is up.

COVID-19 and EB-5 Eligibility

A pandemic presents obvious challenges for immigration that depends on sustained investment and job creation. I’ll write more about this as time permits, but a few timely articles:

• Do jobs need to be sustained for two years to satisfy EB-5 program requirements? (May 27, 2020) Divine & Tishler
• COVID-19 Impact on EB-5 Hotel Projects (April 6, 2020) Lawler
• COVID-19 and EB-5 World (April 8, 2020) Fieldstone & Kapuria
• Filing I-829s During a Coronavirus Economic Downturn (March 26, 2020) Galati

COVID-19 and EB-5 Visa Availability

The pandemic has effectively stopped EB-5 visas from being issued through consular processing. Department of State cancelled “all routine immigrant and nonimmigrant visa appointments as of March 20, 2020,” and the DOS News page has yet to announce any timeline to resume routine visa services worldwide. Individual consulates also make no promises. The consulate in Guangzhou is silent regarding services. The consulate in Ho Chi Minh City announced May 26 that it will resume some regular services but for American citizens only starting June 1, with no promise for when visa appointments will resume. As of May 25, the embassy and consulates in India are still indefinitely closed to the public for routine consular services. There’s no executive order blocking EB-5 visas, but the lack of visa appointments has created a barrier in practice.

In October 2019, Department of State announced that it had 11,112 EB-5 visas available for FY2020, of which India and Vietnam could expect 778 visas each, and an estimated 5,270 could be leftover for China. DOS normally issues available visas gradually over the course of the year, about a quarter per quarter. But the actual pace of visa issuance has been slow with consulate closures, according to monthly reports of visas issued abroad.

What will happen to the EB-5 visa numbers currently not being issued at consulates? A few possibilities:

1. Visa numbers can go to applicants who are already in the U.S. and able to complete the process through I-485 adjustment of status. We don’t know how many applicants are currently in this category, because USCIS stopped publishing data on number of pending I-485. However, historically few EB-5 visas have been claimed through status adjustment. In FY2019, the figures for EB-5 adjustment of status were: China, 433 visas; India, 257 visas; Vietnam, 52 visas. (And in FY2018: China, 481; India, 191; Vietnam, 35.) The Visa Bulletin provides one clue to visa demand. If Department of State can see many people ready to claim a visa, then the Visa Bulletin Final Action Date advances slowly to regulate that demand. If few people are in a position to claim visas, then the FAD must advance rapidly to maximize visa issuance. In 2020, the FAD has advanced extremely rapidly for India, and somewhat rapidly for Vietnam and China. This suggests that the I-485 backlog is small and/or mainly composed of recent priority dates.
2. Consulates might resume routine visa services soon enough, and work hard enough scheduling appointments, that they can catch up with visa issuance before FY2020 ends on September 30, 2020.
3. If consulates aren’t able to resume visa services soon and there aren’t enough EB-5 applicants in the U.S., then DOS might not manage to issue 11,112 EB-5 visas in FY2020. Any unused visas would then roll over to EB-1 next year. (That loss might be counterbalanced by the roll-over to EB categories of family-based visas that couldn’t be issued in FY2020.)

IIUSA Webinar with Charles Oppenheim on 6/16

In recent years, IIUSA Conferences in the Spring and Fall have featured presentations from Charlie Oppenheim, Chief of the Visa Control and Reporting Division at the U.S. Department of State. I look forward to these presentations for valuable updates on number of EB-5 visas issued, the current size of the backlog, and updated estimates for EB-5 visa wait times and visa bulletin movement.

This pandemic Spring, IIUSA can’t hold a conference, consulates have paused visa services, the Visa Bulletin is jumping wildly to accommodate the few EB-5 applicants lucky to be in a position to claim visas, and visa availability has become a wide-open question. In the midst of all this, Mr. Oppenheim has still kindly consented to join a live webinar with IIUSA to address industry questions about EB-5 visa availability.  Register here for the webinar on June 16 at 1 PM EST. Mr. Oppenheim will only be able to discuss visa availability in general terms, rather then providing data and predictions, because even Department of State can’t say at this point what is happening and will happen with EB-5 visa numbers and visa processing. But I appreciate the willingness to engage with the public, and share as much as possible.