Misc updates (USCIS processing, consulates, visa bulletin, litigation, reauthorization)
February 26, 2021 50 Comments
This post briefly reviews a list of important EB-5 updates and resources that I’ve been collecting to highlight for you on this blog, but haven’t had time to address in detail.
USCIS Processing Updates
Ombudsman Meeting EB-5: On February 17, IIUSA met with the CIS Ombudsman’s Office to discuss issues and concerns with USCIS administration of the EB-5 program. The Ombusdman apparently did not tell IIUSA anything, but IIUSA delivered a very detailed and helpful document detailing EB-5 processing problems and policy issues (particularly with the recent Policy Manual update on redeployment). We hope that the Ombudsman will convey these concerns to USCIS.
USCIS Processing Times Report: I continue to log regular updates to the USCIS processing times report, and note that the reported times are increasing. I-526 has stayed about the same, but the latest report added 8 months to the median I-829 time, and 22 months to median I-924 time. That sadly does not signal the processing improvement I’ve been hoping for at IPO. But it’s possible that USCIS is not actually slowing down, but just backing up to deal with some older cases that had been left behind.
Actual I-526 processing times: As we know, the USCIS processing times report with its awkward methodology does not give a good sense of how far USCIS has actually progressed with form processing. I’m personally receiving individual reports of I-526 approvals for people who filed I-526 in September and October 2018. A clever reader with a program for mining the USCIS Case Status tool recently sent me his case status log as of February 16, 2021 for all I-526 filed in October, November, and December 2018. According to this interesting log, USCIS had taken at least some action as of 2/16/2021 on 63% of I-526 filed in September 2018, 23% of I-526 filed in October 2018, and 15% of I-526 filed in November 2018. Of the 1,577 I-526 receipt numbers my reader logged from this three-month period, 354 had been approved by 2/16/2021, 180 had an RFE pending, and 45 were waiting on decision after receipt of RFE response. The case status notes 15 petitions from this period that were voluntarily withdrawn, and a number that were rejected for a variety of reasons (no signature, incorrect fee, etc.) This three-month log does not suggest that USCIS is currently close to providing first-come-first-serve service for I-526 petitions.
I-829 Receipt Delays: A lawsuit is being prepared that will challenge the current months-long delay in the issuance of I-829 receipts. The representing law firm is currently seeking investors who want to be a part of this lawsuit.
USCIS issues from COVID-19 and budget problems: Two FOIA documents posted in the USCIS Electronic Reading Room give insight into processing issues at USCIS.
- The file Employment Authorization Documents (EADs) and Permanent Resident Cards – Representative Spanberger shows correspondence from December 2020/January 2021 between USCIS and a Congressional representative regarding I-485 delays. The Congresswoman noted a backlog of 75,000 Employment Authorization Documents (EAD) and 50,000 green cards that built up at USCIS during the pandemic. She asked about the plan and resources needed to reduce this backlog, and to mitigate its effects. The USCIS response does not answer any of the Congresswoman’s three good questions. It mentions no plan beyond reusing biometrics in some cases. But I’m glad to see the questions being asked.
- The file USCIS budget shortfall – Senator Cassidy includes correspondence from November/December 2020 between USCIS and two Senators who asked about the USCIS funding situation and adverse impacts on contracts and staffing. The correspondence reveals that even though the USCIS funding situation has improved, USCIS is still implementing cost-cutting measures that hamper operations. Specifically “USCIS implemented a 32% reduction to non-payroll expenses in FY 2021.” This cut meant reductions to contract scope and contractor resource/personnel levels (explaining why administrative and customer support functions are even worse than usual). USCIS anticipates that these cuts “will carry over into the next fiscal year and beyond, until enough resources are available to fully fund all necessary expenses.“ USCIS is a fee-funded agency responsible to plan for and set fees sufficient to cover resource requirements to provide acceptable service. And yet the USCIS letter seems to accept no responsibility for resource problems and resulting service failures. The Senators remind USCIS that the law has “language instructing the agency to submit a five-year plan for establishing electronic methods for acceptance, processing, and communication systems to eliminate bureaucracy and fraud.” In response, USCIS helplessly notes that it “expects delay in the adoption of new technologies and increased digitization” due to “the termination of some contracts and the restructuring of others” in connection with cost-cutting. There’s no mention of planning, except this sentence that passively treats resource constraints as a given: “USCIS is in the process of developing its five-year plan, which will consider resource constraints and their impact on each phase of the plan.” I look forward to when Secretary Mayorkas has time to look at what’s happening at USCIS. Ye have not because ye ask not, USCIS. (Or in the case of the last fee rule: Ye ask, and receive not, because ye ask amiss.)
Consulate and visa updates
Visa Bulletin Update: Note that the end of the February 2021 Visa Bulletin has a Section E “Visa Availability in the Coming Months” (i.e. through May 2021). This section indicates that “Employment Fifth” (EB-5) is expected to remain “Current” for most countries, with “no forward movement” for China and “up to three weeks” of forward movement for Vietnam final action dates.
Consular Processing Update: The Department of State Newsroom updated their post on Phased Resumption of Routine Visa Services as of February 24, 2021 – but no good news for EB-5 yet. The post notes that “As post-specific conditions permit, and after meeting demand for services to U.S. citizens, our missions will phase in processing some routine immigrant and nonimmigrant visa cases. Posts that process immigrant visa applications will prioritize Immediate Relative family members of U.S. citizens including intercountry adoptions, fiancé(e)s of U.S. citizens, and certain Special Immigrant Visa applications.” For whatever reason, EB-5 is not a priority. (Update: See also Briefing with Consular Affairs Acting Deputy Assistant Secretary for Visa Services Julie M. Stufft on the Current Status of Immigrant Visa Processing at Embassies and Consulates March 1, 2021)
The Monthly Immigrant Visa Issuance Statistics page on the DOS website shows just how few EB-5 visas have been issued at consulates this year. (For EB-5, search the PDF file for codes with “5” as the second digit.) From October 2020 through January 2021, I count this number of EB-5 visas issued through consular processing to countries at/near the limit: 0 to Chinese, 7 to Indians, and 32 to Vietnamese.
Visa Waiting List Update: The Annual Immigrant Visa Waiting List Report as of November 1, 2020 basically matches what we heard from Charles Oppenheim last November about the EB-5 backlog, but with one surprise for me. Hong Kong has a large number of pending EB-5 visa applicants: 767 applicants to be exact. In a normal year, that number would put Hong Kong up against the per-country visa limit and at risk of visa bulletin cut-off and wait times. The numerical limits are higher than usual this year, and consulates are constrained even without the visa bulletin, which averts the problem. But I wonder if, for the future, Hong Kong should go on Mr. Oppenheim’s watch list of countries poised to exceed the annual visa limit.
Litigation updates
In good news, my file of litigation wins by and for EB-5 investors is growing. Recent entries:
- Our Delayed I-526 Plaintiffs Notch Their Biggest Win Yet in Gutta (February 16, 2021) Matt Galati discusses a 22-plaintiff mandamus action over I-526 adjudication delay. Once again, the court found that USCIS can’t just hide behind the USCIS processing times report as defense against charges of unreasonable delay.
- Six months after Liu: The SEC and disgorgement (January 28, 2021) Clarifies the SEC’s ability to seek remedies for the benefit of victims of wrongdoing.
- Litigation Success Story – Mirror Lake Village, LLC v. Wolf (Fall 2020 RCBJ) A victory for EB-5 investors at the D.C. Circuit court in the question of whether a “put option” predicated on available cash flow counts as a debt arrangement (it doesn’t). See also Successful litigation challenging USCIS Interpretation of Guaranteed Redemptions (September 1, 2020) on Klasko Law.
- DC Circuit Court Decision Holds that EB-5 Loan Proceeds Qualify as Cash (October 29, 2020) IIUSA Blog. Regarding Zhang v. USCIS, a victory for EB-5 investors at the D.C. Circuit court confirming that cash obtained from a loan is cash. See also U.S. Court of Appeals Holds that Loan Proceeds Qualify as Cash, not Indebtedness, for EB-5 Purposes (November 5, 2020) at Saul Ewing
Reauthorization
I have started a new blog page Reauthorization to collect resources and updates for the effort to reauthorize the regional center program in advance of the June 30, 2021 deadline. I will update this page regularly as I hear of more events, advocacy opportunities, and (please soon I hope) legislation.
EB-5 Updates 
Hi Suzanne
Thank you for another comprehensive analysis and blog post.
In the Monthly Visa Issuance statistics that you reference above, I can see that there are indeed 7 EB-5 visas showing for India as place of birth. However, looking at the statistics ‘By Post and Visa Class’, I can only find 2 visas issued at Mumbai consulate in the four month period.
Would it be correct to assume that the other 5 visas were issued at other consulates, elsewhere in the world?
Katy
Oh good point, yes. I’ll revise the sentence in my post.
Hi Suzanne,
Thank you once again for your efforts and support of the EB5 program. I have a couple of questions:
– what happened to the visa availability approach?
-regarding the Galati/ Gutta win, do you think it will benefit future WOMs filled and the Eb5 program in general?
– With your experience do you think there’s a chance the program won’t be re authorized?
Hi Suzanne:
I thought I was the only one, in fact I did I-526 tracker since January… here’s the result til 28 Feb 2021
http://htmlpreview.github.io/?https://github.com/atorpos/eb5tracker/blob/master/export_html/Result_26_02_2021.html
it was 123 cases have been approved(the record range from WAC1890400000 to WAC1990319994), the oldest filing date of feb approved case is 2018-09-25.
I just wondering if its their “normal pace” to process cases or, I was missing sth when I do the tracker. Anyway hope the data also help you analysis, keep up the good work, Thanks.
Looking at the data, FIFO is definitely not the preferred the way for IPO adjudication. There are cases from mid July 2019, which were assessed during Feb,2021 period. Not sure if these cases are tagged as ‘Expedited’ or IPO is also looking at the concerned EB5 project report. If project is completed or has created necessary jobs, then all cases associated with that project irrespective of their filing date are assessed ????
Either way this dataset is very useful.
Jay any way I could contact you? Email?
Job creation, maintenance and funds release to project starts once we get visa, right? My I 526 petition with PD 15th Oct, 2018 got approved on 25th Feb, 2021 and my investment project expected completion is June 2022. I am not able to understand how 2 years job maintenance will happen for the project that is going to complete in 15 months. Please clarify how it works after I-526 approval.
That you use the word “project completion” makes me think that this is a construction project, in which case the project is probably counting indirect and induced construction jobs, not direct jobs. The requirement to be “permanent” (defined as expected to last at least two years) applies only to direct jobs. You can get a better sense of the separate temporal requirements with respect to job creation and sustainment of capital by reading the EB-5 section of the USCIS Policy manual. Particularly look at Chapter 2, 4, and 5. https://www.uscis.gov/policy-manual/volume-6-part-g
Very interesting and helpful. Thank you for sharing!
I can’t seem to open the link.
https://atorpos.github.io/eb5tracker/Result_26_02_2021.html there you go
Please share the latest tracker if you can. Thank you 😊
https://atorpos.github.io/eb5tracker/Result_26_03_2021.html this month’s record from WAC1890400000 to WAC1990320000
In that range only 107 cases have been processed and 2 withdrawal in Mach 2021.
Thanks so much for sharing.
Hi Suzanne (or anyone). Does the USCIS Online Case Check tool update after USCIS receives a response to a RFE? I.e. does it change from “RFE sent” to “response to RFE received” or something like that or does it go straight to a decision? Thank you!
Yes, the tool should update to “Response To USCIS’ Request For Evidence Was Received”
Thank you.
Hi Suzanne, thanks much for the wealth of information! I had a question – how much time does it take for USCIS to send an approved I-526 to NVC for processing? I got approval of my I-526 PD Sep 2018 on Nov 20, 2020, and I still have not received any intimation of processing from NVC even after almost 3+ months. Is there a way I can find out either from USCIS or from NVC? Many thanks so much for your advice!!
Hi,
Please update here once your case reaches NVC so that we can have idea on how long it takes.
Happy to share that my file has been transferred to NVC today Mar 09, 2021 after getting I-526 approval on Nov 20, 2020 — a little above 3.5 months! We expect to receive the “welcome letter” from the NVC in 10-15 days..
Congrats RPG, i am waiting on nvc transfer as well 3 weeks and counting , would you share how did you came to know case has been moved to nvc?
Congratulations and Thank you for the update.
USCIS-to-NVC file transfer is a systemic problem that started in 2020 (a contractor budget cut I assume) and hasn’t been solved yet so far as I know, though IPO says they are aware of extreme delays and working on the problem. IIUSA brought this up to the Ombudsman. See p. 2 of their letter https://iiusa.org/wp-content/uploads/2021/02/IIUSA-Comments-for-CIS-Meeting_2.2.21.pdf
Many thanks for the quick reply, Suzanne! Very frustrating that even after I-526 approval, apparently small things like file transfers take so much time… wish one could do something to nudge them…
Happy to share that my file has been transferred to NVC today Mar 09, 2021 after getting I-526 approval on Nov 20, 2020 — a little above 3.5 months! We expect to receive the “welcome letter” from the NVC in 10-15 days..
Wonderful! Thank you for the update.
Congrats RPG , could you please share how you came to know file was transferred to NVC status
@rajn27 : my lawyer got to know through an email update from USCIS. I also realised it’s updated on the USCIS Case Status Online Tool
Hi Suzanne,
After sending my request to USCIS about “outside normal processing time”, they replied: “Though reviews for most applications or petitions are completed very quickly, a small percentage of cases have unresolved” background check “issues that temporarily delay adjudication of the application or petition… ..the agency cannot move forward until all outstanding issues have been resolved to our satisfaction.
Are they really doing that?
Yes, this is a fairly common reply status. “Background checks” on source of funds especially can get extremely elaborate and thus time consuming, sadly. Knowing the details of the case, your lawyer might be able to guess what it’s about. Best of luck for a good result soon!
Celine, How long are you waiting for ?
My pd from 04/2017
..And then I got RFe in 11/2018 and wait until now
Celine, what is your country of chargeability ?
I see a message change in uscis web site about my case From :
On March 25, 2019, we received your Form I-526, Immigrant Petition by Alien Investor, Receipt Number WAC1990xxxxxx, and we mailed you a nitice on April 25 …….
To:
On March 25, 2019, we received your Form I-526, Immigrant Petition by Alien Investor, Receipt Number WAC1990xxxxxx, and sent you the receipt notice that describes how we will process your case. Please follow the instructions in the notice. If you have any questions, contact the USCIS Contact Center at http://www.uscis.gov/contactcenter. If you move, go to http://www.uscis.gov/addresschange to give us your new mailing address.
Does it mean they started working on the case or it is random?
To me that looks like a revised “we received your case” notification, not an indication for further action yet.
Thank you Suzanne. Just hoping for some moment in the case. I did see one case filed on the same date got approval. Just being optimistic 🙂
Thank you for all your help and great work providing this group with latest update.
Looks like some of you may not be part of EB5 telegram group. Click on this link to join – https://t.me/EB5VisaGroup
This link is not working
Just checked. It is working. Check your browser.
Has anyone got any news on 2019 PD? I have nov19 PD
No I haven’t yet . I don’t think they are there yet.
Not working for me as well. 😦
A bunch of people have joined since yesterday, try again. Currently, Oct 2018 is being processed.
Can you please recheck the URL
Hi,
My case history so far –
I-526 filed on 7/31/2018
I-526 approved on 10/20/2020
I-485 (adjustment of status), I-131 (travel authorization) and I-797 (work authorization) filed on
12/3/2020 (receipts received on 1/3/2021)
I’m still waiting for my biometrics appointment details. However, I did receive an NVC notice last week, which is odd since I filed my adjustment of status while in the US and am not subjected to NVC. This was also indicated at the time of filing.
Has anyone else had a similar experience of applying for adjustment of status while in the US and receiving an NVC notice? Also, I’m curious to know what I-485 timelines have been after filing regarding biometrics, approvals etc.
Thank you.
Suzanne
On the DOS statement stating which visas they will start processing they state “ …and Special Immigrant Visa applications.” My question is: what is their definition of this? Does EB 5 fall into this category?
Hi Suzanne,
I have been checking my i-526 case status and your blogs every single day. My PD was 29 Nov 2018 and my case got approved today. Sharing the news so others can in and around my PD can expect a decision soon.
Congratulations
How long after approval of the i-526 expedite request approval should we expect to know the decision ( approval/denial/RFE)