Perspectives on the EB-5 visa queue (new I-526 approval report)

The wait time for an EB-5 visa depends on the number of people in line, and the rate at which the line moves. Both factors are complicated and can be tough to pin down. We’ve recently received significant new information related to each factor. This post attempts to put the new information in context. (Note: this post only concerns people interested in EB-5 timing for China, Vietnam, and India.)

The EB-5 queue normally moves at a rate of about 10,000 applicants per year, with about 700 per country, but this can vary. I recently wrote a guest post explaining How EB-5 Visa Numbers Will Increase in FY 2021. I have another post in progress to discuss visa availability and the movement of the EB-5 visa queue for China specifically, in light of recent developments.

The queue size question is complicated by spotty data and multiple stages. The following image illustrates three ways subdivide the EB-5 queue, when trying to calculate it. If you don’t have time to read the whole post, at least spend time gazing at this image, and see how it puts available queue data in context.

Perspective A looks at the queue in terms of stages between USCIS and Department of State.  Visa Control Office Chief Charles Oppenheim uses this perspective when making EB-5 wait time estimates. But Mr. Oppenheim calculates from two of the four variables in this picture. His wait time estimates count pending I-526 and pending applicants at the National Visa Center, and disregard the population segments for which he lacks data: people with approved I-526 but no visa application yet, and people with pending I-485. If those segments are small, then omitting them doesn’t matter much to wait time estimates. Historically, I-485 numbers have been indeed been very small (though Indians might change that going forward). The population of people between I-526 and visa application might be significant, particularly for China.

Perspective B reflects an alternate way to subdivide the EB-5 queue along the lines of before/after I-526 approval, and before/after visa availability. This perspective has come into focus because USCIS just started to publish data for a key variable: number of approved I-526 waiting for visa availability. I still can’t complete the calculation, because there’s only data for two of three segments for Perspective B. But the new data is tantalizing, because it overlaps with the major unknown from Perspective A.  The population of people with I-526 approval and no visa application on file yet (unknown) is a subset of the population of people with I-526 approval and waiting for visa availability (now reported).

So let’s look at these new data reports from USCIS, and think about what the numbers mean in context.  The following screen shots show reports as of October 2019 and April 2020.

Notes:

  • China report: In October 2019, there were 27,251 Chinese investors with I-526 approval and priority dates more recent than November 1, 2014 (the final action date in the November 2019 visa bulletin). In April 2020, there were 23,511 Chinese investors with I-526 approval and priority dates more recent than May 15, 2015 (the final action date in the April 2020 visa bulletin). Some inferences from these reports:
    • By moving the China final action date from November 2014 to May 2015 this year, Department of State apparently made a minimum of more 3,740 Chinese principal applicants eligible to claim visas. A decrease to the number of Chinese waiting for visa availability means an increase to the number of Chinese with visas available. (This doesn’t consider the number of visas actually issued, or the number of incoming I-526 approvals.)
    • USCIS reports 23,511 Chinese investors were awaiting visa availability as of April 2020. That number is principals only, not family members. Assuming a historical ratio of 2.7 visas per principal for China, that means about 23,511*2.7=63,889 future Chinese visa applicants at the stage of having I-526 approval, but not yet able to proceed to final action in the visa process. Charles Oppenheim reported that in June 2020, there were 42,575 EB-5 visa applications on file for China. The visa applications would include some people with visas available according to the visa bulletin Chart A, and some who are still awaiting final action. So the population represented by 42,575 overlaps with the population represented by 63,889. But the difference between 42,575 and 63,889 gives a hint about the number of Chinese with I-526 approval who may not have visa applications on file. In other words, a hint about the size of the population omitted from Department of State EB-5 queue estimates for China.
  • India report: In October 2019, there were 189 Indian investors with I-526 approval and priority dates more recent than December 8, 2017 (the final action date in the November 2019 visa bulletin). In April 2020, there were 51 Indian investors with I-526 approval and priority dates more recent than January 1, 2019 (the final action date in the April 2020 visa bulletin). Some inferences from these reports:
    • USCIS is slow. By April 2020, there apparently had been only 51 approvals for Indian I-526 filed in 2019 and later.
    • Department of State has apparently made India current for final action because it sees only a few Indians with approved I-526 waiting for visa availability. 51 principals would be about 124 visa applications, considering the typical applicant/principal ratio for India. Department of State still has over 200 visas available for Indians this year.
    • The number of Indian investors waiting for visa availability dropped between November 2019 and April 2020. That drop means an increase in the number of Indian investors who have visas immediately available to them (and suggests that there have been few incoming I-526 approvals on Indian petitions filed since December 2017).
  • Vietnam report: In October 2019, there were 491 Vietnamese investors with I-526 approval and priority dates more recent than November 15, 2016 (the final action date in the November 2019 visa bulletin). In April 2020, there were 443 Vietnamese investors with I-526 approval and priority dates more recent than February 8, 2017 (the final action date in the April 2020 visa bulletin). Some inferences from these reports:
    • The number of people waiting for visa availability is increased by new I-526 approvals, and decreased by visa bulletin movement that makes visas available to more people. For Vietnam, these two factors approximately balanced each other between November 2019 and April 2020, since the size of the waiting pool hardly changed. Either there were many I-526 approvals and many people became eligible for final action during that period, or few incoming I-526 approvals and few exits to the final action stage.
    • The numbers help explain why the Visa Bulletin has moved more slowly for Vietnam than for India. In April 2020, Department of State could see only 51 Indian investors ready with I-526 approval but as yet unable to claim visas, but 443 similarly-placed investors from Vietnam. 51 Indian investors plus family could all fit into this year’s visa limit, so the visa bulletin may as well become current to let them all through. By contrast, 443 Vietnamese investors would require more than one year’s visa quota, so the visa bulletin must continue to use final action dates to gradually channel that pool into the final action stage.

When confronted with a data point about the EB-5 visa queue, it’s necessary to put that data point in context, considering which segment of the queue it represents. The new USCIS report gives data for the segment of people with approved I-526 plus still waiting for visa availability. The total queue for EB-5 conditional residence includes two other segments: people with pending I-526, and people with approved I-526 plus visa availability. So according to USCIS data, the EB-5 queue of investors as of April 2020 equals about 17,500 I-526 pending plus 24,005 approved I-526 still waiting for visa availability plus an unknown number of approved I-526 now eligible for final action. As adjusted by the addition of family members, of course.

Perspective A and B are both limited by lack of data for a major population segement. I tend to favor Perspective C, which makes queue calculations simply from I-526 filing data, to avoid unknowns about where people currently fall in the process.

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.

42 Responses to Perspectives on the EB-5 visa queue (new I-526 approval report)

  1. Baichuan says:

    Hi Suzanne,
    Thank you for this in-depth analysis. This report is the best I’ve read on the recent data release by USICS in the industry.
    If you don’t mind, I have a question on numbers: 3,740 * 2.7 = 10098. Does it mean that, if 2.7 multiplier still holds steady, USCIS has allocated almost all VISA this fiscal year to Chinese petitioners&family members? A reasonable theory is that demands from other parts of the world reduced to nearly non-existence after the price increase.

    • I guess that Oppenheim moved the China date as far as he did this year with this strategy in mind: (1) to move the date as far as possible now to maximize the number of Chinese who can get visas through status adjustment in FY2020, since that’s the only way for Chinese to get visas while Guangzhou is closed for who knows how much of this fiscal year, but (2) to not move the date so far that he’d be forced to retrogress in FY2021. It’s going to be practically impossible for Department of State to even issue the 5,000+ visas they’d expected to give China in FY2021, but 10,000 people might not exceed the capacity in FY2021, considering demand and capacity next year.

      • Baichuan says:

        Suzanne,
        Thanks for you reply. Sounds like to me he’s trying to find the tricky balance between not wasting too many visa this FY and not being too optimistic to next FY. Considering unused FB visa this FY going to EB next FY and EB probably will have in well excess of 200,000 I believe in coming months dates will move forward a lot. However just heard the news that USCIS has started sending out furlough notices who knows what’s gonna happen next…

  2. Eyezy says:

    Hi Suzanne,

    Thank you for the very helpful analysis!
    I am from Hong Kong, I have filed my i-526 in September 2019. Would you please advise why did USCIS only processed visa from China, India and Vietnam in 1 & 2?
    Why weren’t there any visa approvals from other countries & the ROW? With the VAA came into effective in April, how long should I expect to hear from the USCIS?

    • The report I discuss in this post specifically gives data for the three countries with wait times for visa availability. Only investors from China, Vietnam, and India have been in the position of having I-526 approval, but still needing to wait for visas. Hong Kong and other countries are not in this report because they all have visas currently available. I-526 timing is a separate matter. If you’d like my I-526 timing analysis, you can request it here: https://blog.lucidtext.com/resources/eb-5-timing-estimates/

  3. Charlie says:

    Hi, Suzanne:

    What does it mean by “with I-526 approval who may not have visa applications on file”? I thought cases with approved I-526 are immediately transferred to NVC to be on file. Might be some misunderstandings on my part.

    • I don’t understand the procedures well enough to know if there necessarily exists a population of people associated with I-526 approvals but recorded neither at NVC nor at USCIS for status adjustment. It just looks as if it does exist, at least for China. Because otherwise, how to otherwise explain the remarkable mismatch between (a) the number of Chinese who have received I-526 approval (or alternatively, the number of Chinese I-526 filed), and (b) the number of applicants reportedly on file at NVC.

      • Charlie says:

        Could it be that the average amount of visas per I-526 has decreased to around 2? I seem to have heard a lot of applicants in 2016 have no family attached.

  4. Martin Lee says:

    Thank you for the analysis.

    I would like to ask about the I-526 wait time for HK-born applicants.
    I filed up my petition and submitted to USCIS on Nov 18 2019.

    Approximately, what is the wait time for the I-526?

    Thank you!

  5. Cheung Kin says:

    I come from Hong Kong. I want to ask what visa availability means? Does it mean a quota set aside for each region or country?

    • So long as EB-5 visas for a year are limited, country caps limit any one country to 7% of the available quota — about 700 visas in a typical year. Hong Kong has not been close to exceeding that limit, so investors born in Hong Kong face no wait for visa availability. For the purpose of U.S. visa changeability, Hong Kong and mainland China are treated as different countries.

  6. RR says:

    I am from India and my priority date is Nov-2017. As my luck will have it, no I-526 approval yet 😦
    My lawyer thinks it is still within the processing time window and not inclined to follow up with USCIS yet. So wait continues..

    • According to the current USCIS Processing Times report, 50% of I-526 processed in May 2020 had been filed within the last 29.5 months — i.e. since November 2017. (That’s the interpretation, if you read the notes on the report.) When about half of recent approvals were on cases the same age as yours or younger, you’re getting close to an argument that your petition is delayed. The case inquiry date is artificially placed in extreme outlier territory, and should be disregarded. As long ago as October 2018, there were only 951 I-526 left pending at USCIS with filing dates from 2015 and earlier. Since then, in FY2019 alone, USCIS processed over 4,000 I-526. Thus, any I-526 from 2015 somehow still being adjudicated today were left extremely far behind, and no reflection on “normal processing.”

  7. VP says:

    Hi Susan, Thank you for this post. based on the new Visa Processing norms which is not FIFO effective April, does it mean that if you are an Indian applicant, since the visa bulletin for India is current, the pending I 526 applications will be processed in any random order which is definitely not FIFO?
    In the changed scenario what is the relevance of even having a PD any more?

    I am also wondering between October 2019 and April 2019 when FIFO was the norm to approve Visa applications, how did 51 applications with PD after Jan 2019 from India get processed when some of our indian origin applicant readers with PD of Nov 2017 are still remaining un-processed ?

    • V J says:

      yes this is also my question as my PD also Sept 2017( i 526 ), and not process yet but they keep changing processing time way to long,

    • It’s my understanding based on what IPO has said that the current policy is FIFO for petitioners with visas available. But presumably that’s “FIFO” as much as it’s ever been — e.g. a general principle with many exceptions.
      I assume that the the 51 2019 PD for India had approved expedites (https://www.uscis.gov/forms/forms-information/how-make-expedite-request)
      Note that until I-526 approval, your receipt date is technically just a receipt date or filing date. It only becomes established as a priority date when the petition is approved, and has most power at the visa stage. See for example this explanation from the recent EB-5 regulations:
      Section 203(e) of the INA provides that immigrant visas must be issued to eligible immigrants in the order in which a petition on behalf of each such immigrant is filed. USCIS determines such eligibility through its approval of petitions. See also, e.g., INA section 203(b)(5) and (f), 8 U.S.C. 1153(b)(5) and (f); INA section 204(a)(1)(H) and (b), 8 U.S.C. 1154(a)(1)(H) and (b); 8 CFR 103.2(b)(8)(i). Requiring approval of the petition prior to establishment of a priority date is consistent with DHS’s historical interpretation of eligibility with respect to order of consideration for visa issuance under INA section 203(e), the Department of State’s regulation on priority dates for visa issuance, and DHS’s priority date retention regulation for other employment-based categories. See 8 CFR 103.2(b)(1) (mandating eligibility from time of filing through adjudication); 22 CFR 42.53(a); 8 CFR 204.5(e) (priority date retention). USCIS determines a petitioner’s eligibility as part of adjudication of the petition, and USCIS’s approval of the petition along with the filing date establishes the order of consideration for a visa.

      • VP says:

        Thank you Suzzane.

        I am quoting your reply “ It’s my understanding based on what IPO has said that the current policy is FIFO for petitioners with visas available“ Am I correct in interpreting this as Visa’s will still be processed in a FIFO basis for all countries which are current (based on the Visa bulletin) even after the I-526 petitions are approved ?
        My immediate question would be “ Did USCIS ever publish the basis on which I- 526 applications pending adjudications be processed?

        • Prior to the establishment of USCIS, the Operations Instructions of legacy-INS at OI 103.2(q) 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.

          Visa issuance is a separate matter from petition processing. Visas are issued in order by priority date to people who are in a position to receive them — i.e. have I-526 approval, documentaryily qualified, physically able to complete the process..

  8. Charlie says:

    Suzanne:

    One more question: I ran into a report by Center for Immigration Studies which includes the following quote commenting on the effect of drop in applications on visa backlog:

    “The recent drop in applications was sharp enough so that a much shorter visa backlog for people from India has disappeared.”

    Since, as far as I know, US consulates in India are also closed, how does this quote make sense? Or is it merely a conjecture?

  9. Francesca says:

    Hi Suzanne,

    I have a question: My PD is March 23 2018. I am on an F1 OPT that expires in October. I am hoping to do Adjustment of Status as soon as the I 526 gets approved. in Two months exactly, it will be the 29.5 limit to file a complain. Will the forlough of the 13.000 USCIS employees affect my change to get an EAD while my AOS is pending?

  10. Martin says:

    Hi Suzanne,

    I was born in Hong Kong and I filed my I-526 petition on Nov 18, 2019. However, Mr. President has just announced the termination of Special Preferential Treaty of Hong Kong. In President’s Executive Order, it mentioned that the US will treat Hong Kong SAR passport Holders the same as China Passport Holders meaning the waiting time and the quota of both China and Hong Kong treated in the same basket. I would like to ask will my case be affected?

    Thank you so much!

    • In the IIUSA webinar a couple weeks ago, Department of State Visa Control Office Chief Charles Oppenheim said that Hong Kong’s status for the purpose of visa chargeability is part of immigration law, and a new law would need to be passed to change that. But this would be a question to discuss with your lawyer. The text of the executive order does say that it suspends immigration law with respect to visa allocation.

      • Martin says:

        Thank you, Suzanne.

        We have already contacted our lawyer in the US and we are still waiting for their replies. I think Hong Kong-born applicants should wait for the detailed implementation of the amendment.

  11. Pramod Patil says:

    Hi Suzanne,
    I am from India and my priority date is May-2019. When should I expect the I-526 approval as earliest (initial 50% of cases). Please suggest.

    • Vaibhav says:

      Well the new uscis processing times now show 46 months for 50% and 74.5 as upper range. This seems like some ploy at this point to deny investors the visa or delay it so investors have to reinvest. Would not be surprised if this is done in partnership with the real estate lobby.

      • crying face emoji says:

        Looks like they missed a spot and had to go back. Again…

      • Pramod says:

        Thanks Vaibhav for your comment. But it’s not worth to keep money into project for this long. Also there is no guarantee that after long hold you definitely get GC.

  12. Amy says:

    Hi Suzanne – the uscis case processing timing page says the processing times now reflect the new visa availability approach. Given this, does the 46 months processing time also apply to countries which are current at the moment? Or can these countries expect approvals sooner? It is appalling uscis keeps increasing the processing time every few months. They have made this a moving target.

    • When I view the report, it still says “In the future, we will update the processing time information for Form I-526 to reflect this change” — i.e. that in the present, the report has not yet been updated for the VAA. The current report can have little to no connection to reality, considering what we know about numbers of I-526 from 46+ months ago — I’ll blog about that as time permits. Judging by individual reports, USCIS has in fact been mainly working on I-526 filed around Jan-Mar 2018.

      • Amy says:

        Thanks for the prompt response. Any idea why then the processing time report is so alarming? Is uscis really expected to take 4-7 years to approve i526 going forward?

  13. UN says:

    USCIS is so short on funds. Why don’t they process the I 526 applications of applicants already in USA, that way, they will be able to apply for adjustment of status and will possible generate some revenues. Any I526 approved for people in countries where visa offices are closed or not processing EB5 visas, at least this way they utilise this years visa numbers and generate revenue.

  14. Sharjah Sustainable City says:

    Thanks a lot for the post. It’s helped me get some nice ideas.

  15. AW says:

    Regarding to the Hong Kong born EB-5 investors, does the President Trump’s Executive Order affect those who have filed the I-526 petition in 2018? Or only those who are file after the Order?

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