Updates (USCIS director, visa bulletin, visa numbers, regs litigation, country caps)

Another post with bits and pieces of news you should know in EB-5.

USCIS Leadership and Processing Improvements

Ur Mendoza Jaddou, the nominee for USCIS Director, made this statement to the Senate Judiciary Committee at her nomination hearing on May 19:

At the heart of a functioning immigration system is an agency that effectively processes immigration and naturalization applications under the law, like those of my family and so many others. This means that USCIS must process applications fairly, efficiently, and in a humane manner; be accessible, transparent, and accountable; and safeguard the integrity of the system; and ensure the security of the nation.

My most immediate responsibilities if confirmed will be to return the agency to firm solvency, resolve dramatically increasing processing times and backlogs, and utilize 21st century tools. I’ll work to ensure that USCIS retains the confidence of the American public as an agency able to fulfill its mission. In addition, I’ll work to ensure that the hardworking and dedicated men and women, my former colleagues at USCIS, have the resources, leadership, and support they need to carry out their roles without undue difficulty.

[Transcribed from Ms. Jaddou’s opening statement 1 hour and 23 minutes into the hearing video.]

These are precisely the words I wanted to hear. I also appreciated this testimonial from the U.S. Chamber of Commerce:

Ms. Jaddou has significant experience working on immigration policy and she is very familiar with the operations of USCIS. Ms. Jaddou’s knowledge and experience would be indispensable in providing the critical leadership needed to stabilize the agency’s financial challenges, reduce its significant processing backlogs, and provide stakeholders with more consistency throughout the various adjudications processes it conducts every day. Throughout Ms. Jaddou’s public service, she has shown a keen understanding of how USCIS operations affect businesses across various industries. The Chamber is confident that she would continue to consider the views of the American business community on the issues that are critically important to the ability of many companies to meet their current and future workforce needs.

Ms. Jaddou presented herself well at the hearing, and did not get many questions. A couple Senators grilled her on the controversial issue of parole, and one asked about tackling petition backlogs. Regarding backlogs, she noted that she has a running start thanks to understanding all the small steps that go into creating processing times. I hope that she is confirmed soon! The Biden Administration has nice-sounding goals for restoring integrity to USCIS operations, and I’d love to see a few of them realized.   

Visa Processing and Availability (Vietnam, China, FY2022 numbers)

Department of State Press Office has been doing a wonderful job with the YouTube live chats at https://www.youtube.com/user/TravelGov/videos In just a few minutes a month, Department of State reminds us that they have skilled, caring human beings ready to take and respond to public questions. Watch and learn, USCIS.

At the end of the June 2021 Visa Bulletin “Chat with Charlie” (minute 33) Charles Oppenheim mentioned “an excellent chance” that the Vietnam EB-5 Final Action Date will be “current” by September 2021. Current means that any Vietnamese who’s ready at the visa stage could proceed to final action then, regardless of filing date. Mr. Oppenheim did not give any background to this prediction, but we can identify two reasons:  (1) slow I-526 processing limiting the number of Vietnamese who reach the visa stage, and (2) Vietnam’s excellent work in controlling COVID-19 and getting consular processing back on track. Judging by visa issuance so far, Vietnam may be the one country that may actually approach the 1,302 EB-5 visas technically available to each country in FY2021. According to statistics on monthly visa issuance, Vietnamese had received 541 EB-5 visas through consular processing as of April 2021. Ho Chi Minh City issued a heroic 320 EB-5 visas in March alone. If that kind of performance continues into next year, the estimated visa wait time for incoming Vietnam EB-5 applicants could be reduced from the expected 7-8 years to more like 5-6 years.

Guangzhou and Mumbai are still not doing well with EB-5. I count only 29 EB-5 visas issued to Indians and only 14 to Chinese through consular processing so far this year (October 2020 to April 2021). The consulates in China and India are issuing a small number of visas in all categories, and EB-5 sadly belongs to the “Tier 4” lowest level in Department of State’s priority list. The best hope for Chinese and Indian EB-5 applicants may be to catch up next year, when EB-5 will once again have additional visas available.

EB-5 visa availability in FY2022 will be increased by a share of the unused family-based visas that spill over from FY2021. In the “Chat with Charlie” video linked above, Mr. Oppenheim stated that he expected the FY2022 Employment-Based visa limit to be at least 290,000. That would mean EB-5 would get over 20,590 visas (7.1% of the EB total) and each country would get over 1,441 visas (7% of the EB-5 total). If consular processing is back to normal by then, and those extra visas could be issued, then India and China could at least counterbalance the losses in FY2021.

The June 2021 Visa Bulletin finally moved the China EB-5 Final Action Date from August 15, 2015 (where it’s been since last August) to September 15, 2015. In the “Chat with Charlie” linked above, Charles Oppenheim indicated that he expects to continue to move all EB dates aggressively, but mentioned China EB-5 as a specific exception to that rule.  (For other EB categories, he predicted that the the “dates for filing” in the June 2021 visa bulletin will likely be the “final action dates” in the September 2021 visa bulletin). Department of State elaborated further in an AILA Liaison Committee Meeting on May 27, 2021. AILA had asked “2. Given that Guangzhou resumed IV processing on April 9th, how far does DOS expect the EB-5 final action dates to advance by the end of this fiscal year?” DOS responded: “The China EB-5 Final Action Date will be advanced based on estimates of visa availability under the FY 2021 EB-5 annual limit. Movement of the date is likely to be limited based on the large number of filings received during September 2015.”

EB-5 Regulations Litigation

I’ve avoided commenting on the litigation to invalidate the EB-5 Modernization Regulation – an effort that’s justified and that also risks derailing regional center program reauthorization efforts and being misrepresented to prospective investors. What makes an immigrant investor program attractive? One important factor: price. A more important factor: whether the program even offers a path to immigrate. That second factor is in question now, and must be resolved before the regulations can make a difference.

For expert analysis of what the litigation involves and could imply, see these articles:

Court may invalidate 2019 EB-5 Regulations while regional center legislative expiration looms” (May 14, 2021) by Robert Divine

“Behring Regional Center v. Department of Homeland Security and The Case for Common Sense” by Aaron Grau, May 2021 Regional Center Business Journal (page 37)

Update: Behring Companies hosted a helpful webinar on June 7 to explain their goals and vision for the litigation, and expected outcomes. Recording available here.

Country Caps Legislation (EAGLE Act)

The country caps debate is now officially back on the table, as Rep. Zoe Lofgren has reintroduced the Fairness for Highskilled Immigrants Act, now called the EAGLE Act. The bill text reflects H.R.1044 from last Congress, and once again offers no transition period to protect in-process EB-5 investors, should the bill become law. (The proposed transition period and special provisions apply to EB-2 and EB-3 only, suggesting who’s paying for lobbying.) Country caps are what prevent high-demand countries from claiming all available visas in EB categories. If the EAGLE Act passed, then the EB-5 visa wait line would become simply first-come-first-served order, benefiting the tens of thousands of Chinese who have been waiting longest, and creating unexpected multi-wait times for applicants from most other countries. With over 80,000 people in the EB-5 wait line, a new investor from any country could expect to wait over 8 years for a visa. (I discussed the implications in this post.) Country caps legislation has been around for many years without getting passed. It managed to pass both House and Senate in last Congress, but didn’t end up on the President’s desk. We’ll see what happens this time around. Kamala Harris had co-sponsored the Fairness Act when she was a Senator.

Other Articles of Note

“The Corporate Rights of EB-5 Investors: How to Navigate the Legal Maze of Redeployment and Liquidation Once the EB-5 Investment is Repaid” by Vivian Zhu and Rogelio Carrasquillo May 2021 Regional Center Business Journal (p. 10)

“What The Latest Unemployment Data Tells Us About The Trends and Distribution Of EB-5 TEAs” by Lee Li May 2021 Regional Center Business Journal (p. 40)

I am once again a “Top 5 Business Plan Writer” in the EB5 Investors Magazine poll. A big thank you to my industry colleagues who have voted for me every year since 2016, and to clients who trust me with their business plans. I continue to enjoy the challenge of figuring out how to make EB-5 work for business.

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.

18 Responses to Updates (USCIS director, visa bulletin, visa numbers, regs litigation, country caps)

  1. RM Lokesh says:

    hi suzanne, With Direct EB-5 application, Pending I-526 application ? can the eb-5 applicants apply for International Entrepreneur Parole?

  2. RPG says:

    Hi Suzanne,

    Outstanding information and analysis – with every post, you set a benchmark for yourself significantly higher than the previous one!!

    FYI, my application (Indian-born applicant based in Mumbai) has made further progress and I just received a letter from NVC declaring our application and documents to be complete, and that we should wait to be informed on interview appointment date. So timelines of my application are : Priority date : beg-Sep’18, I-526 approval end-Nov’20, receipt of case at NVC – end-Mar’21, applications & cvil documents submitted – end-Apr’21, response & request for info – mid-May’21, re-submission – end-May’21, documents declared complete – beg-Jun’21.

    I feel so far so good, and not as bad as what it could have been with all the events in the last 2.5+ yrs!! Anyways, my question now is when is the interview likely to happen. I know we’re Tier-4 priority, and that Mumbai consulate has been closed since Mar’20 with very few EB-5 visas being processed per your post. With consulates now set to re-open on Jun 07, 2021 ( https://in.usembassy.gov/visas/immigrant-visas/ ), I wonder what the backlog by different types of immigration visas at Mumbai consulate is, especially how many EB-5 visas? Is there any way of finding this out, or any surrogate data to conjecture this? My son is due to apply to US universities this Dec’21. I wonder whether we will get the visa before that, or at least by Mar’22 so that we can impact the admit decision.

    Any perspective would be highly welcome. Thanks so much in advance!!

    • Harris says:

      Congratulation to you ,but for me the processing time is very bad so far 50 months still no results despite completing RFEs since 2018.My PD April-2017 under Ms Kendall ‘s work

      • Your case is very definitely delayed, even according to USCIS standards. Has your lawyer tried inquiries through the IPO Customer Service? Letting IPO know that your I-526 was already assigned back in 2018, and that you’ve been waiting since a 2018 RFE response? The vast majority of normal processing is queue time, not touch time. A very long wait after RFE response tends to signal a mislaid file.

    • Chandra Prakash Ojha says:

      Are you part of Regional center program ? I think a lot would depend on EB5 Regional Center reauthorization. Even if the program briefly lapses after June 30th, it certainly affects your planning. Although likelihood of long term lapse is low and termination of the program even lower but not impossible. Important to factor those and watch for updates on EB5 Regional Center reauthorization. If possible, please lend a hand.

    • These are good questions that I’d want to think more about. But to assist your thinking, here are some sources:
      This gives data on the NVC backlog by category and country as of November 2020, including for India EB-5 consular processing:

      Click to access WaitingListItem_2020_vF.pdf

      This gives data on monthly visa issuance. You could look at pre-pandemic numbers for Mumbai to guess how much of a backlog may have built up across all categories during the months of closure:
      And you could try sending your question to Department of State directly in advance of the next “Chats with Charlie” YouTube chat. (Look for the invite and email for advance questions in the forth-coming July 2021 visa bulletin.

  3. SP says:

    Hello Suzanne,

    ” I hope that she is confirmed soon!”

    Is there a fixed date when Ur Jaddou will be voted (confirmed or denied)? I also hope she is confirmed soon.

  4. Narinder says:

    Hi Suzanne, Thanks for the excellent article.
    We are Indian citizens who got EB-5 approved in early April 2021.
    However, we haven’t heard anything back from NVC. Can we do something about it?

    Also, since Mumbai is issuing EB5 visas very slowly, can we move our case to UAE? (I have a UAE residency visa valid till June 2022)
    We had also qualified for Canada Express Entry and may move to Canada in October this year.

    Should we use our residency country as India, UAE or Canada?

  5. Kim says:

    Hi Suzanne,

    With three weeks to go until the program sunsets, do you have any sense of which “side” has more industry support? The “good government” side says that IIUSA and the vast majority of EB-5 stakeholders support S831. Meanwhile, the “holistic reform” side says that only IIUSA and a very select few EB-5 operators support S831 but that another more powerful coalition is forming. I can’t help but wonder what the reality is since each side seems adamant that they have the (moral?) high ground (not that I’m entirely sure whether industry support matters all that much in the current situation).

    • To date, the good government side has tried to build coalitions and win broad-based support, but with uneven success; the holistic side has not even invited broad-based participation. The holistic side aims to be powerful, but not interested to be democratic. Both sides speak the language of moral high ground. I think the proof is in the pudding. Look at which each side is actually advocating, and consider how much of the industry would benefit from each side.

  6. David says:

    Hi Suzanne,

    I am concerned about the recently announced EAGLE act, do you have any sense of how likely it is to become law give the current Congress? With a pending I-526 from October 2019, I believe if this law were to pass my 2+ yea0r wait time will more than double if petitions are reprioritized without country caps or a transition. Are there actions that can be taken to try and advance a petition if this law is likely to pass? The only action I am aware of is a mandamus but I was informed that this is typically only successful if the petition is at least 2 years old but perhaps it’s better to try something rather than facing years of extra delay. I also wonder if the EB5 industry is lobbying to change this legislation since I can’t imagine there will be any new B-5 investors if they will have to wait 8-9 years for residency?

  7. Annie Tran says:

    Hi Suzanne,

    What do you think about the upcoming EB5 program expiration date on June 30th? The july visa bulletin just came out and now all the 5th regional center program are currently unauthorized for all countries.

    This has given me and my family a lot of stress. Do you think Congress would pass a bill before the deadline?

  8. RM Lokesh says:

    Hi suzzane,

    If the EB-5 Regional center expires on June 30th, What happens to pending I526 ? Will It be processed?

    If the pending I526 from regional centers is not processed… will the direct Eb-5 I526 be processed? IF so how many applications are of direct eb-5 Indian applications is pending? Will it be processed quickly?

    Also the July bulletin says… U… what does that mean?

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