Authorization (webinars updated), Regulations (articles), FY2021 Q2 Processing Data

With a record level of uncertainty in EB-5, it’s hard to know what to say. But I shall provide resources and processing updates, at least.

Regional Center Program Authorization Legislation Updates

  • USCIS has not yet published guidance for the now-inevitable regional center program expiration/lapse as of July 1. 6/30 UPDATE: Now USCIS has published an alert on the website page for Approved EB-5 Immigrant Investor Regional Centers.
  • Attorney Carolyn Lee hosted an EB-5 Program Sunset Pop-Up Event, on 6/30 at 2:00 PM ET. I will link to a recording here when available
  • AIIA is hosting a Town Hall on July 1 at 6 pm ET to provide EB-5-investor-focused updates on what’s happening and solicit investor input for EB-5 reform negotiations. UPDATE: Recording available on YouTube.
  • IIUSA is hosting a webinar on June 7 at 12 pm ET to discuss reauthorization efforts and the IIUSA advocacy plan. UPDATE: Recording available on YouTube.
  • EB5IC and the China-focused EB-5 investor advocacy organizations are not offering any public engagement so far as I know, but I’ll update this list if I hear anything new. (UPDATE: EB5IC is doing some Sarah-Kendall-style public engagement, and emailed video on July 1.)

Regulations Update

The government has not yet reacted publicly (that I can find) to the court decision on June 22 vacating the EB-5 Modernization Regulation. The Code of Federal Regulations 8 CFR 204.6 at ecfr.gov (updated as of June 25), the USCIS Policy Manual Vol. 6 Part G, and the EB-5 page at USCIS.gov still say that the minimum EB-5 investment amount is $1.8 million, or $900,000 in a TEA designed by USCIS. EB-5 lawyers agree that the June 22 court win did indeed return the EB-5 investment amounts to $500,000 or $1 million in a State-designated TEA, and that I-526 can be filed at this level so long as the June 22 change still applies. The expert lawyers do not agree on the probability that USCIS will go on to approve I-526 filed at the lower investment level, or how and how soon and for whom the rules may change back again. I’ve started a table lining up the variety of opinions I’m seeing/hearing on regulations-related questions, and may publish it later once I have more feedback. A few expert reference articles available so far:

EB-5 Form Processing Update and FY2021 Q2 Processing Data

On the positive side, USCIS says they welcome the extensive public feedback on “Identifying Barriers Across USCIS Benefits and Services.” A USCIS Public Engagement email last week said that: “We greatly appreciate all the feedback submitted and are actively reviewing the comments we received. We will use this feedback to inform future policy changes and operational improvements. We remain dedicated to providing all stakeholders with opportunities to share meaningful feedback and to engage with the agency.”

A second piece of good news:   On June 24, the Senate Judiciary Committee advanced Ms. Ur Jaddou’s nomination for USCIS director, bringing her bringing the nomination closer to a full Senate vote.

And now for the rest of the news. The Investor Program Office and EB-5 processing have not shown improvements yet. Last week, the USCIS Citizenship & Immigration Data page was updated with data reports for FY2021 Q2 (January to March 2021). Processing volume in this quarter remained low – even worse than in the last quarter under the Trump administration. This is not the trend I wanted to see. I-526 receipts also remained low, though a bit higher than we had thought: total 189 for October 2020 to March 2021. I was glad to see that I-829 receipts caught up in January to March, compensating for an artificially low previous quarter.

I-526ReceiptsApprovalsDenialsTotal ProcessedPending
Jan 2021 to Mar 20219875213088213,044
Fiscal Year to Date1891,7562492,005
I-829
Jan 2021 to Mar 20211,0535663760310,356
Fiscal Year to Date1,2581,207781,235
EB-5 Form Processing Data from https://www.uscis.gov/sites/default/files/document/reports/Quarterly_All_Forms_FY2021Q2.pdf

USCIS reported 13,044 pending I-526 as of March 31, 2021. Considering historical trends, we can assume that over 90% of those are regional center I-526 that cannot be processed once the regional center program lapses starting on July 1.  A Bloomberg Law article from June 25 “Backlog of Investor Visa Applications in Limbo as Program Dies” included this quote: “The Homeland Security Department subagency can’t yet say what the fate of those EB-5 applications are, USCIS spokesman Joe Sowers said Friday.” That’s over 10,000 regional center investors and their families and over 5 billion dollars in limbo associated with pending I-526 alone, not to mention over 70,000 regional center applicants at the visa stage. As industry negotiators keep up their “my way or nothing” positions, they must think about the implications associated with that amount of money in the economy, if not that number of tender individual human beings dependent on regional center program authorization.

Mandamus litigation has offered hope to combat the EB-5 processing slowdown since 2018. But the hope is limited. The above-linked Bloomberg Law article reports (though without citing sources) a high rate of denial and dismissal for mandamus lawsuits. The article indicates that federal courts threw out two of four EB-5 mandamus actions in 2020 and two out of three suits in January and February. One suit in May had a partial victory for the plaintiffs, while three were denied in June. “In many of these cases, judges cite a set of factors in a 1984 case—Telecommunications Research and Action Center v. FCC—that set standards for when courts ought to compel agencies to take action in the event of an unreasonable delay. The opinions often cited the concern that siding with the plaintiffs would send a signal that litigious applicants for the program can jump to the front of the line.” Ideally someone will soon address the across-the-board slowdowns and productivity loss at the Investor Program Office, as illustrated in the above charts, so that individual petitioners do not have to fight individually for treatment that everyone deserves.

What will happen to EB-5 processing during the regional center program expiration/lapse? If we assume that about 1,300 pending I-526 are direct petitions, that IPO continues processing I-526 at a rate of 900 petitions per quarter, and that the RC program stays expired for months to come, then the direct I-526 inventory could all be adjudicated this year. Or maybe IPO will eventually respond to changes by moving staff over to I-829 adjudications, in which case I-829 rather than direct EB-5 may benefit from the RC program lapse/expiration. With so many moving parts, prediction is difficult.

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.

9 Responses to Authorization (webinars updated), Regulations (articles), FY2021 Q2 Processing Data

  1. Katy B says:

    During the previous lapse, in 2018/2019, USCIS continued to accept new I-526 applications (which assumes they were confident the program would be re-authorized) while refusing to adjudicate any new or existing applications (which assumes they thought the program might never be re-authorized). I understand that their decision to do this was purely based on ad hoc protocol and precedence, rather than any statutory regulation.

    Continuing to accept new applications while refusing to adjudicate existing ones simply increases the backlog and makes no sense at all. I sincerely hope they review this position for the current lapse and determine to continue processing I-526 in an effort to clear the backlog.

    • veedster says:

      Built into the Biden infrastructure Bill is an allocation of $45 billion to the IRS!. What do you think that is for? That is to hire and arm an army of auditors to tax the lowly mom and pop operations and joe six-packs. (the big wigs are off-limits.) Why? . Because they need all the money they can find. Find they will. As I mentioned before, with Covid, reopening of economy and infrastructure, they cannot afford to say no to interest-free loans flooding to the USA in the billions through EB-5. This program will be reauthorized, in some form or the other.

  2. Sameer says:

    What happens to the responded RFE or NOID and waiting to hear back from USCIS, will those be adjudicated ?

  3. Jdong says:

    USA now has been reduced to a level of lowly ‘Banana Republic’ with perennial problems. I cannot believe my stupidity to invest my hard earned $’s in a country which legitimizes robbery in broad daylight. Senators and law makers are hand in glove with regional centers and they don’t give a damn about investors who are stuck in limbo over past 8 years. Both entities are busy milking the cow named ‘Investor’ and won’t stop until she drops dead. I have already given up my plans to immigrate irrespective of the outcome of this drama, just waiting to cash out my investment. Glory days are done…..

  4. Amy says:

    Hi Suzanne – is there a recorded transcript to Carolyn Lee’s 6/30 session?

  5. dk.offers says:

    My heart just sank when I saw the total number of processed for Q1 is 882. I think Suzanne’s comment that this is lower than the final quarter of the previous administration is spot on. Man, that hurt.

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