I-526 Processing Update (May 2022)

Of the many battles to fight in EB-5, a critical one remains the situation at the Investor Program Office.  The EB-5 program and visa issuance depend on IPO functioning to administer the program and process petitions.

With three months since Congress passed the new EB-5 law, is IPO back to work? Witness the number of I-526 approvals in recent months, in context of IPO’s performance since 2014.

As illustrated, processing volume remains not merely suboptimal, but almost vanishingly small. This is extremely concerning, in light of what IPO demonstrably could do and needs to do.

To at least advance sufficient applicants to claim the average 10,000 EB-5 visas available annually, IPO needs to at least approve about 3,600 I-526 per year (considering an average 36% of EB-5 visas have gone to principal applicants). In the first 8 months of FY2022, IPO has only approved 223 I-526. IPO management might proudly point out that they have improved since the new EB-5 law, approving almost 100 I-526 in May 2022, compared with only 9 in February 2022. This is “next to nothing” improving on “nothing.”  A rate of 100 approvals a month is still three times too low to avoid wasting EB-5 visas in a normal year, five times too low to avoid wasting visas this year, and ten times too low to provide timely processing for over 13,000 pending I-526 petitions. The necessary recovery is not even close to complete. If IPO thinks that May 2022 was anywhere near “back to normal,” we’re in trouble.

I start with a focus on I-526 approvals, since that’s what drives the EB-5 process. Everyone from prospective investors to DHS leadership to Congressional representatives should care if the EB-5 process is grinding to a halt because USCIS is stalling Step 1.

 A closer look at the data reveals other details of interest.

We can see what happened when the regional center expiration as of July 2021 left USCIS to focus on the direct EB-5 I-526 inventory. IPO ramped down activity overall, and what it did was mainly to RFE and deny petitions with priority dates from before 2015 through late 2019. And then with the return to regional center I-526 processing since March 2022, we see I-526 activity going back to concentrate on late 2018 priority dates, with a modest uptick in volume, more decisions than RFEs, and denial rates still high. USCIS had been mainly processing I-526 with October to December 2018 priority dates back in early 2021, before the regional center processing freeze, so I’m not surprised to see those dates back on the table now. Many 2019 decisions in May 2022 were likely on direct petitions that had received RFEs during the shutdown. But overall, processing is evidently not first-in-first out. On any given day, the handful of EB-5 actions completed can include I-526 with priority dates anywhere from 2013 to 2022. As a supervisor looking at these charts, I would question IPO management about its disordered process as well as about its low productivity.

Needless to say, USCIS did not intend to share such granular and timely data. USCIS has edited the processing times report to report only outliers and only 6-month averages, officially publishes limited performance data only after a half-year delay (last published report was October-December 2021), and does not answer my FOIA requests. Fortunately, USCIS also leaks. The above data is from a leak that I am delighted to report, as someone concerned about my clients’ future and EB-5 program integrity. The Investor Program Office is acting as if it could count on darkness and inattention. May the record of its irresponsible performance come to the attention of USCIS leadership who want reforms, and of Congressional representatives who care about the integrity, reputation, and functionality of EB-5.

At the EB-5 listening session on April 29, 2022, USCIS Director Jaddou recognized that “The EB-5 investor program allows individuals to become vital and contributing members of the United States. It also strengthens our communities across the country by encouraging foreign direct investment and creating jobs.” She also stated that “I firmly believe that every applicant who seeks a benefit from USCIS is entitled to a timely decision – be it a yes or no. This is about delivering tools to our workforce to efficiently and effectively adjudicate cases and reduce processing times.” Time to see that vision work its way down to IPO.

(I could also discuss I-829 processing data, with similar concerns, but consider the I-526 problem in most urgent need of publicity as an integrity, public policy, and market issue.)

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 I-526 Processing Update (May 2022)

  1. Anil Kumar says:

    Very disappointing Leaked Data from IPO,Suzanne you are doing a great job and deserve our sincere thanks & gratitude

  2. N V says:

    I, along with one other petitioner got our I-829s processed by filing a Writ of Mandamus. Our PDs were in mid to late 2019 and we just couldn’t wait any longer. Traveling with ADIT stamps is rather difficult especially since other countries don’t recognize it and sometimes even the CBP officers don’t recognize it.

    Tangent aside, anyone have any experience with filing a Writ of Mandamus for I-526 petitions?

  3. Johnny Lok says:

    We invested in a regional centre. Our priory date is late Dec 2018 and we are from Hong Kong. Still hear nothing so far. Very disappointed to see what they are really doing!!

  4. Dil says:

    Everyone should join American Immigrant Investor Alliance (goaiia.org). It played a crucial role in getting existing investors grandfathered into the new law. And it has plans to push for speedier processing of I-526, I-829, I-485 and other matters. It is vital for all investors to band together.

  5. Just another investor says:

    If my memory serves me right Sarah Kendall embarked on a retraining of all officers with a promise that this will speed up processing. It will seem that after the “retraining” that denials went through the roof. My RFE was questioning everything, even the obvious, amounts, accounts and you name it. I have no issue in responding, as all is above board, but it implies another round of submission and going back and forth. And in case you think my submission was sloppy. It was structured, clear and complete and I used one of the top EB5 lawyers. It will seem as if the culture instilled is that of suspicion, deny if unsure and do not take any risk. I am sure that there are excellent officers working in that office but man I cannot see the timeline improving. Good luck my friends. Do not be surprised by an RFE or denial. Also look up “preponderance of evidence” which is used for Source of Funds.

    • N V says:

      “Preponderance of evidence” brings back memories from my own RFE response back in 2017. Hope you got your 526 processed/approved Just Another Investor.

  6. Y526 says:

    How is it that the above charts show that some people with PD dates in 2021 have received approvals or RFEs when the whole time they’ve been saying on the USCIS website that processing times are up to 3 or 4 years and that I shouldn’t ask about my case before November 2026 (was August 2026 earlier.) I am a direct investor with a PD date in October, 2021 and I am not from a backlogged country. From what I was informed, I’d be lucky if I get any update or reply about my I-526 petition within 2 years. My lawyer informed me that she is only getting approvals for her 2018 and 2019 filed petitions.

    • M Shahul says:

      Hi, I am a direct investor my PD September 2021. I am still waiting. One of the investor Same PD got RFE which is less than a year.

      • Y526 says:

        It’s becoming more obvious to me that the timeline depends on a few factors: how easy one’s case is, how efficient and knowledgeable the USCIS officer adjudicating the petition is and/or if there is a visa readily available for the petitioner. It is seemingly obvious that most USCIS officers prefer to deal with easy cases first (less pages and documents to review and verify.) That’s likely why some petitioners get RFEs before others.

        Of course, if you’re applying from a backlogged country then you can’t compare your timeline to others because there is a vast difference in where you would be in the queue. Most likely, the petitioners getting replies in less than a year are from countries that the USCIS does not get a lot of EB5 applicants from.

        What really blows my mind is how the USCIS seems to adjudicate non-EB5 cases so much faster but then make it clear to immigrants that they want people who will not be a burden on the government or the economy. If that’s the case, it doesn’t make sense that we are given fifth preference as employment-based immigrants.

  7. Anil Kumar says:

    EB5 visa priority is lowest in the book of USCIS BECAUSE I 526 petition is accepted only after $800000 is invested in at risk business and investor almost become prisoner of the system as they can’t do much after that rather to be at the mercy of bureaucrats

  8. RC says:

    Has anyone got priority date for RC based I-485 (Probably filed in May 2022) while I-525 is still pending?

  9. Hiep says:

    Conflict of interests. Regional centers, USCIS and the US economy all benefit from slow processing. FOREIGN investors suffer. Who cares. If the investment amount only transfers from an escrow account to a regional center’s account when the I-526 application is approved. The processing time will definitely be much faster.

  10. Anil Kumar says:

    @Hiep,couldn’t agree more if investment amount is transferred from Escrow account to RC AFTER adjudication of I 526 petition

  11. Nikky T says:

    Does anyone I-526 still pending with current visa available have your lawyer filing I-485?
    My RC email me to go for it but my lawyer want to wait for more guideline from uscis. Any suggestions? I am in US and want to go forward because I want to get travel documents as soon as possible.

    Thank you

    • M Shahul says:

      Hi Nikky, I filed my Direct EB5 i526 September 2021 which is pending. Filed my i485, i765 and i131 on April 2022.

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