FY2021 Q4 update on I-526 and I-829 Processing

USCIS has updated the Citizenship and Immigration Data page with performance data for FY2021 Q4 (July to September 2021).

EB-5 Form Data from the USCIS FY2021 Q4 All Forms Report

I-526 ReceiptsI-526 ApprovalsI-526 Withdrawals, Denials, RevocationsTotal I-526  Final ActionsPeriod-end Pending I-526
Oct – Dec 2020911,0041191,12313,746
Jan – Mar 20219875213088213,044
Apr – Jun 2021169 (incorrect, should be 512)59213572712,798
Jul – Sep 2021456 (incorrect, should be 113)5026631613,008
FY2021 Total8142,3986503,048
I-829 ReceiptsI-829 ApprovalsI-829 Withdrawals, Denials, RevocationsTotal I-829 Final ActionsPeriod-end Pending I-829
Oct – Dec 2020205641416829,894
Jan – Mar 20211,0535663760310,356
Apr – Jun 20211,2494024644811,160
Jul – Sep 20217944048749111,448
FY2021 Total3,3012,0132112,224

Notes on corrections:

  • This USCIS report mistakenly credits I-526 that were filed in the last days of June 2021 (the filing surge between the Behring decision and RC program expiration) as receipts in July to September 2021. The corrections I entered come from the different I-526 receipt data in this report: https://www.uscis.gov/sites/default/files/document/data/1-EB-5_New_Rule_Effects_Report_7.19.2021_Final_508C.pdf.
  • While the USCIS report simply uses the word “denied” in the column heading, the 4-point font notes at the base of the report clarifies that “Denied are the number of applications or petitions that were denied, terminated, withdrawn, or revoked during the reporting period.” This is particularly significant for I-526, as the majority of I-526 cases in the “denied” column for July to September 2021 were actually withdrawals. (i.e. not reflecting any adjudication work or petition problems, but USCIS simply acknowledging investor decisions to withdraw their petitions). An inside source tells me that from July to September 2021, there were 254 I-526 withdrawn and 48 I-526 denied. Not sure how USCIS gets to the number 266 – possibly again due to the confusion exhibited in the I-526 report about when months begin and end.

I started 2021 with hope for EB-5 processing. I foresaw improvement from the confirmation of Alejandro Mayorkas as the new DHS Secretary, since as USCIS Director under Obama he was attentive to EB-5 and personally responsible for getting resources to establish the Investor Program Office and fill it with high-grade staff. I had hopes for Ur Jaddou, who promised this year that “As USCIS director, I will work each and every day to ensure our nation’s legal immigration system is managed in a way that honors our heritage as a nation of welcome,” and who rightly opined that “USCIS must process applications fairly, efficiently, and in a humane manner.” I was excited to hear about the departure last year of IPO Chief Sarah Kendall, who was responsible for decimating IPO productivity in 2019/2020, and I looked forward to better new leadership at IPO. When the regional center program lapsed, thus temporarily reducing the I-526 processing workload by at least 90% and eliminating the I-924 and RC compliance workloads, I expected a silver lining in the form of more resources for direct EB-5 and I-829.

Data on EB-5 form processing has disappointed my hopes so far. (Oh how I miss reporting good news. I do truly search for it.) I-526 and I-829 processing productivity fell in FY2021, even below previous low levels. I-829 only got a little worse over the course of the year. I-526 got much worse, with post-RC-shutdown processing volume reduced by an even greater percentage than post-shutdown inventory.

EB-5 forms won first, second, and third prize for the worst processing times of all USCIS forms in FY2021. Form I-526 and Form I-829 continue to dominate in FY2022 so far, with median processing times so lengthy (48.8 and 41.8 months) that they’re almost double the third place finisher for worst processing in all of USCIS forms (Form I-730, at 25.4 months). (As an aside, note that the historical PT page that I linked is now more timely and worth checking now than the regular processing times page, which has changed to a 6-month average method to help hide fluctuations.) 

It’s important to remember that the median processing times reported by USCIS reflect the median PT time experienced by people at the end of the process, and not predictive for people starting the process under entirely different conditions. But I’m also alarmed by results from the equation for predicting future processing times: inventory divided by throughput. That equation looks disheartening when throughput falls (as has been happening for I-829, though I keep expecting the tide to turn), and impossible when both inventory and throughput are not in a trend but liable to go up or down by over 90% (the case with I-526). At the moment, the I-526 processing time prediction equation is flirting with what happens when a denominator reaches zero. In the entire month of November, only 14 I-526 were approved or denied. Many days in December have passed with no I-526 work completed at all, not even RFEs.

What’s going on? The numbers suggest that EB-5 is not a priority yet for the administration/USCIS. (I also note the absence of any EB-5 benefit in USCIS’s celebration of FY2021 accomplishments.) On-going lack of leadership at the Investor Program Office must be partly to blame. (IPO hasn’t had a chief since December 2020). The regional center program expiration has had an impact, with completion rates suggesting that IPO has, at least temporarily, lost most of its I-526 adjudicators. Instead of re-allocating resources to direct EB-5 and I-829, IPO appears to have merely let resources go.

The EB-5 program clearly needs to be stabilized, so that it can work again, and stop the bleeding at IPO. Clients are coming to me with wonderful job-creating business ideas, but we depend on USCIS processing to support that economic development potential, and to provide any chance of an immigration incentive for investment in good business. The current dire EB-5 processing situation provides yet more incentive and pressure for industry and Congress to get EB-5 legislation as soon as possible.  The status quo at the Investor Program Office is not good for anyone, not even direct EB-5.

I considered a possible innocent explanation for falling I-526 completion rates: USCIS has been working since July on direct EB-5 cases, which they usually RFE before approving or denying, and the direct EB-5 inventory is relatively small. However, even RFE issuance has been falling in recent months, even as direct I-526 receipts keep coming in. IPO has been assigning a miscellaneous but decreasing assortment of I-526 up to but so far (since July) never passing November 2019 priority dates, despite available direct EB-5 inventory that was filed more recently. Why is IPO not processing new I-526 receipts, as an alternative to doing almost nothing with I-526? I copy below a table of unofficial data from my leaker at IPO. I have reached out to number of lawyers to ask for help to interpret what’s happening here, and what might be done to hold IPO to account.

Data from an unofficial source for I-526 RFE and NOID issued since July 1, 2021

Number of I-526 RFE+NOID sent from 7/21 to 11/21, by calendar year of I-526 priority date
Month that RFE or NOID was sent201620172018201920202021TOTAL
Jul-214433360077
Aug-21109890099
Sep-2123910400118
Oct-21143590067
Nov-21290260037

And finally, in case publicity helps to shame IPO into action, here is a day-by-day accounting of actions completed by I-526 adjudicators in December 2021 so far, according to my fly-on-the-wall source. Attention IPO, YOU ARE BEING WATCHED! Wake up and look busier! I want to take a Christmas vacation too, but this doesn’t look good for an office with over 200 EB-5-fee-funded employees.

Working DayFinal I-526 Actions CompletedIntermediate I-526 Actions Completed
1-Dec WednesdayDenied an I-526 filed in 2016 (after receiving an RFE response 13 months ago)RFE sent to an I-526 filed in October 2019
2-Dec ThursdayNoneRFE sent to an I-526 filed November 20, 2019
3-Dec FridayNoneRFE sent to an I-526 filed September 2017 (after receiving response to a previous RFE 31 months ago)
RFE sent to an I-526 filed September 2019
6-Dec MondayNoneNotice sent to an I-526 filed in February 2017
7-Dec TuesdayDenied an I-526 filed in September 2018RFE sent to an I-526 filed March 2018
RFE sent to an I-526 filed November 20, 2019
8-Dec WednesdayNoneNone
9-Dec ThursdayNoneNotice sent to an I-526 filed in April 2019
10-Dec FridayNoneNone
13-Dec MondayNoneNone
14-Dec TuesdayNoneNone
15-Dec WednesdayNone (re-issued an approval notice sent to the wrong address)None
16-Dec ThursdayApproved an I-526 filed in 2017
Approved an I-526 filed in May 2021
RFE sent to an I-526 filed November 20, 2019
RFE sent to an I-526 filed November 20, 2019
Notice sent to an I-526 filed November 20, 2019
17-Dec FridayNoneNone
20-Dec MondayDenied an I-526 filed in 2017RFE sent to an I-526 filed November 20, 2019
21-Dec Tuesday Notice sent to an I-526 filed November 20, 2019
22-Dec WednesdayNoneNone
23-Dec ThursdayNoneNone
24-Dec FridayHoliday 
27-Dec MondayNoneNone
28-Dec TuesdayNoneNone
29-Dec WednesdayNoneNone
30-Dec Thursday RFE sent to an I-526 filed July 2019
31-Dec FridayNoneNone

Looking forward to new legislation and new leadership at IPO to turn this situation around.

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.

24 Responses to FY2021 Q4 update on I-526 and I-829 Processing

  1. Martin says:

    Hi Suzaane,

    Thank you for your analysis. Do you mean that even if the Congress reauthorizes the bill next year, the PT will not be shortened? Say my priority date for I-526 is Nov, 2019, what is the waiting time for this date? I would like to consider going to Canada if the immigration time of US keeps increasingly long. Thank you!

  2. C says:

    “I’m immensely proud of the USCIS workforce and for their achievements in a year of many challenges and rebuilding. From responding to the COVID-19 pandemic and addressing processing delays to enacting numerous operational and policy changes…FY 2021 marks a year of growth and renewed vision for our agency,” said USCIS Director Ur M. Jaddou.

    At least no one can say Mr. Jaddou lacks good humor! On a more serious note, the first law of holes is “if you find yourself in a hole, stop digging”. The second law of holes is “when you stop digging, you are still in a hole”. USCIS seems unaware of both. I am now afraid that It isn’t that USCIS cannot find the solution. It is that they cannot see the problem.

  3. Sean says:

    Suzaane,

    Thank you for a great analysis!

    I’m wondering if you have any processing data from the unofficial source for I829? I’m also wondering if you have any insight on the alarmingly high rate of I829 denial (17.7%)?

    Any comments would be greatly appreciated!

    Sean

  4. Hiep says:

    Management is the key but we cannot change that. I don’t see any other options than a lawsuit. https://iiusa.org/blog/member-perspective-eb-5-i-829-receipt-notices-extended-to-24-months-but-extensions-dont-go-far-enough/

  5. Abdul says:

    Is there expedited service in processing I-526, I-485 etc…? Can investors pay extra fees to have their applications processed faster?

  6. Vijay says:

    Hello Suzanne,

    Is Uscis processing Advanced parole and Ead renewals related with pending RC based 485s.
    If not what happens when current Ead is expired And renewal ead application has been pending for more than 6 months ( filed may 2021 )

    • Thengai says:

      I’d like to know this too. I filed by I765 and I131 in April at NBC. Has anyone who filed for them before June 30th received recently?

  7. Pingback: Uscis All Forms Data - USCIS Forms 2022

  8. burt says:

    Adding to the data and analysis provided by Suzanne is data obtained by the Galati Law firm using the Freedom of Information Act (FOIA)
    https://www.galati.law/post/new-data-i-526-receipts-by-month-by-investor-country-of-birth-oct-2019-oct-2020

  9. Hiep says:

    Does anyone has some information about grandfathering law yet? I have not heard anything from AIIA?

  10. DD says:

    Hello Suzanne,
    I heard that the EB5 reauthorization will not be a standalone bill (S.831 bill), it is still a part of the large budget bill of gov like it did many years ago, correct?
    Thanks.

  11. eric yao says:

    Suzanne,

    Hope all is well. My EB5 client wants to estimate waiting time for his visa. Do you provide this service?

    Eric Yao Pacific ProPartners 6263620202 ________________________________

  12. Hello Suzanne,
    Greetings!
    After going through articles, even I got stuck at your big question, as to why IPO is not processing any new I-526 petitions, And that could possibly be due to pending appeal of USCIS with Ninth Circuit, as agaist Behring RC Case?

    As, If USCIS could have strongly believed that, they shall get through the Appeal under Ninth Circuit, which resulting into investment amount changes & that contradicts currently applied I-526 petitions for consideration of investment amount and that could be the possible reason why they are not processing?

    After going through Behring RC Case Summary, even though USCIS lost case under District Court, but my learning suggest that, they shall get through under Ninth Circuit Appeal & eventually implement stay…

    So, there exists a contradictions for Investment amount consideration…

    What’s your point of view on possibility of USCIS to win the pending Appeal at Ninth Circuit, any thought or guidance shall be appreciated…

    Wishing All “A Very Happy Christmas & New Year 2022!!!”.

    • An unspoken policy of abeyance due to pending appeal is indeed my working hypothesis based on the processing data, and I’ve asked a bunch of lawyers to help try to disprove it. USCIS has announced no such policy, and it would be ridiculous, dishonest and I would say even wicked of USCIS to implement such a policy without announcing it, because good-faith project companies and investors absolutely and obviously need to know one way or another. So I hope this is not the explanation, but appearances are suspicious. I don’t know about USCIS’s eventually winning the appeal, but win or lose appeals take forever, so at minimum any abeyance policy would create a major delay factor.

      • Even though USCIS has not formally notified any such abeyance policy to Public Notice, but they do clarify to the District Court Judge & can be found to be well noted under Behring RC Case Summary too…

        Which is as follows;

        “The government also suggests that the Court could remand without vacatur and that it should do so because (1) vacating the rule would be extremely disruptive, and (2) Secretary Mayorkas has ratified the rule which signals that any defects “are at best technical deficiencies.” (Dkt. No. 39 at 15.) However, if the Court enters any kind of vacatur order, the government requests a stay to allow the agency time to address the issue. Because the Final Rule “ha[s] no force or effect,” 5 U.S.C. § 3348(d)(1), it must be “set aside” as action taken “in excess of statutory … authority,” 5 U.S.C. § 706. “

      • Shuo Zhang says:

        Hi Suzanne,
        We can clearly rule this out now as the Department of Homeland Security just filed an unopposed motion to dismiss this appeal.

        Can the post RC shutdown processing volume be explained by something like that the IPO needs months (if not years) to reorganise their workload to start processing direct cases only? In other words, we could anticipate the processing volume to get back to “a normal level” (whatever that means) at some point in the future. Am I being too naive and hopelessly optimistic?

  13. roshiniravilla says:

    Hi,

    This December list has an entry for approved from May 2021, is this really 2021?

  14. Brij says:

    Hi Suzanna, thank you for the excellent post! Is it possible to get an update on the USCIS processing since this post? I am not optimistic but has USCIS efficiency improved by any chance in last two months?

    I see that USCIS has started clearing EB-2 backlog drastically in last year. I am wondering if most of EB-5 resources have been moved to clear EB-2 since July 2021.

  15. Heeral Mehta says:

    Hi,
    This is very informative data. Thanks for sharing.
    Is there any update post this, if yes than pls do share at your convenience.
    Thanks again.

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