Forecasting Visa Availability: 5/6 Oppenheim projections and big picture

[Post updated 6/19/2019] Today Charles Oppenheim, Chief of the Visa Controls Office at the U.S Department of State, gamely appeared again at IIUSA’s EB-5 Advocacy Conference to discuss EB-5 visa availability.

So far Twitter just reports a few headlines from his talk. India is expected to reach its limit and get a cut-off date by July 2019, and to start FY2020 with a final action date in Summer or Fall of 2017. Rough estimates for visa wait times for I-526 filed today: 16.5 years for China, 8.4 years for India, 7.6 years for Vietnam, and 2.4 years for South Korea. I trust that IIUSA will again support program integrity by publishing a blog post with the detail and slides from Mr. Oppenheim’s talk. When that happens, I’ll update this post with a link. [UPDATE: Here is IIUSA’s post on the Oppenheim presentation, and a link to his slides.] But for the moment, some background and comments on what the estimates do and do not mean.

Future visa wait times rest on several uncertain variables, and thus impossible to calculate with certainty. Mr. Oppenheim has gotten flack for attempting long-range predictions that aren’t and can’t be perfect. But rough headline-making projections serve a purpose: to highlight the existence of real visa availability issues, even if with a significant margin of error.  Hearing “16.5-year wait” at least alerts EB-5 users to a problem with China visa availability, though an accurate year estimate could be longer or shorter depending on which assumptions one chooses to use for the calculation. [I have a request pending with IIUSA to clarify Oppenheim’s assumptions.]

There are two ways to go wrong in interpreting future EB-5 visa wait time estimates. One is to interpret them as some kind of official guarantee, and blindly follow or furiously attack them as such. The other is to dismiss them as mere hot air, conclude that wait time projections are prohibitively complex, and thus disregard wait time as a factor in EB-5 decision-making. Some past EB-5 investors make the first error. Unscrupulous promoters hope that all prospective EB-5 users will make the second error.

In the past I’ve delved into the detail and complications behind EB-5 visa availability, with my 10-tab spreadsheet of data, log of visa allocation statutes, and scenario analysis. But examining the trees can mean losing sight of the forest. So for this post, I want to focus on the solid big picture behind all our varied and flawed attempts to quantify EB-5 wait times in detail.

First, an image to clarify how the EB-5 queue works. It’s the kind of queue where you enter a waiting room, take a number, and sit down to wait, watching a notice board for your number to be announced to show that your turn has come. Meanwhile, other people are also moving through the process and getting their turns and leaving, while others enter, and the notice board updates regularly.

[Image updated 6/19/2019]
In EB-5, the place-holding number is “priority date” – the date of I-526 filing. The notice board is the monthly Visa Bulletin, which signals which priority dates can get service at any given time.

Figure 1 illustrates the stages in the EB-5 process up to conditional permanent residency.

• Step 1: File I-526. This step initiates the EB-5 process, and assigns a priority date that marks each investor’s place going forward. There is no constraint at this stage; as many people as want to file I-526 can file I-526.
• Step 2: Waiting for I-526 approval. In principle, I-526 adjudication is first-come-first-served without regard to nationality, but it’s not strictly by priority date. In recent years, most people have waited 1-2 years at this stage. This stage is only constrained by USCIS efficiency in processing petitions. The USCIS Processing Times Report gives a rough indicator of progress in I-526 processing. Step 2 must be completed before the investor can apply for a visa. We have data for I-526 receipts, approvals, and pending petitions at various points in time. (Such data only counts number of principal investors, so need to multiply by an estimated number of family members when making total visa demand estimates.)
• Step 3: Wait for a fee bill from the National Visa Center (consular processing), and wait for the visa bulletin to indicate that one is qualified to move forward in the process.
• Step 4 to 5: Investors plus family members can proceed to get green cards through consular processing or I-485 status adjustment once visa numbers are available to them. At this stage, priority date and nationality determine order of service, and the Visa Bulletin announces each month who can proceed. We have data for the number of people waiting at Stage 3-4 from different countries at various points in time. (Such data already counts investors plus spouse and children – don’t multiply by derivatives again or you’ll overcount.)
• Step 5 has the major process constraint – the annual EB-5 visa quota. The annual limit: about 10,000 total EB-5 visas worldwide, of which at most only about 700 can go to each country other than China, and none to China except what’s leftover from the rest of the world (which has been 4,000 – 9,000 visas in recent years). Steps 3-5 can be less than a year wait for applicants born in countries that are “current” in the Visa Bulletin (not at risk of exceeding the 700/year visa limit). Steps 3-5 involves multi-year waits for applicants born in countries that do exceed the annual quota. The more in excess of the quota, the longer the wait.

Some points that I tried to highlight in Figure 1, to combat misconceptions:

• The person just entering at Step 1 can look up at the notice boards and see who’s currently getting service. He can see from the current processing times report that most I-526 from before 2017 have already been processed, and from the current visa bulletin that China-born applicants who filed I-526 in October 2014 are now getting green cards. But that’s just info about the end of other peoples’ process — indicating who’s being served now, and how long they waited. It does not look forward to indicate when May 2019 priority dates will be served, or how long the person at Step 1 will wait.  To forecast into the future, and guess about future notice dates, the person in Step 1 needs to look around and forward — at how many other people are entering Step 1 and waiting in Step 2 to Step 4 in front of him. Charles Oppenheim attempts to help with such guesses.
• Wait times result from backlogs building up against the major constraint in the EB-5 process – the annual visa quota. Unfortunately for efficiency, this constraint is in the last step. To estimate his personal wait time, the person in Step 1 needs to estimate how big the backlog will be once he gets to Step 3. Again, this requires looking around and forward — at how many other people are entering Step 1 and waiting in Step 2 to Step 4 in front of him. The variables are clouded by spotty information and judgment calls, but the equations themselves are simple. If I’m an India-born person in Step 1, then my visa wait = (A) qualified India-born visa applicants with priority dates earlier than mine divided by (B) about 700 visas per year limit. Variable (A) is equal to India-born investors waiting in Step 2 in front of me, minus attrition from I-526 denials and withdrawals, plus family members who will join the approved India-born I-526 in Step 3-4, plus India-born applicants already waiting in Step 3 and 4, minus India-born applicants who will drop out or receive visas during my time in Step 2-4.
• It’s good to step back sometimes from the confusing variables to the simple equations, as a reminder of the big picture and basic logic of wait times. The basic logic is that visa waits are mainly a function of I-526 volume. Unknowns about future denials and withdrawals and family size and processing times will vary forecast calculations this way and that, but this is sure: a lot of I-526 filings will result in a lot of people eventually ready for a visa. A lot of visa applicants will mean long backlogs and wait times in front of the visa quota constraint. People at the beginning of a surge in I-526 filings will wait less time for a visa than people after a surge.
• With that in mind, one last figure, the most telling of the numbers in my backlog calculation file. If I were a lawyer counseling EB-5 users about big picture timing issues, I would have them consider the numbers in Table 1. How many investors plus family are likely to end up at Step 5, and when, considering how many investors have started at Step 1? What future wait times are implied in that past demand, considering visa number limits? It’s impossible to look at I-526 numbers and predict exact backlogs and wait times, considering all future variables, but it’s easy to see the general issue. For example, over 700 Vietnamese investors filed I-526 in 2018, and only 700 Vietnamese investors plus their spouses and children can get visas in a year, so Vietnam is clearly looking at a backlog and wait time situation at the visa stage — a situation exacerbated by excess demand in 2016 and 2017 as well. A Vietnamese investor had better not rely too heavily on specific future estimates from Charlie Oppenheim or anyone else, but she can and should have a chance to see the fact and consider the consequences of excess demand.
  

NOTE: I’ve added a EB-5 Timing page to collect links to data and posts related to EB-5 visa availability, visa allocation, and wait times. If you would like to order a personalized timing estimate, see the EB-5 Timing Estimates Page.

FY2018 Q4 Petition Processing Data

USCIS is finally starting to update its Immigration & Citizenship Data page with data for petitions processed in FY2018 Q4 (July to September 2018). As usual, I’ve made charts to highlight salient features.

I like to look at annual trends in receipts and adjudications, because this reflects demand and allows understanding and predicting processing times at the Investor Program Office.

The backlog of pending petitions grows and processing times increase when IPO receives more petitions in a year than it can process in a year. That happened for I-526 from 2010 to 2017, when IPO finally started to catch up. In 2018, IPO surged ahead, processing more than twice the number of I-526 received. At this rate, the entire backlog of I-526 pending as of year-end 2018 will be adjudicated in 2019, and new I-526 can expect processing times of less than one year. I-526 processing times were a major factor for people who filed during peak demand in 2015 and 2016, and thus faced years-long processing on average. I-526 processing times will fade as a consideration, as new petitioners can expect months-long waits on average. (My I-526 prediction spreadsheet forecasts future processing times from petition volume.) Meanwhile, I-829 faces continued long processing times because adjudication volume is so small compared to the backlog. So long as IPO can only process less than 3,000 I-829 in one year, it will take 2-3 years just to get through the backlog of 7,660 I-829 pending as of October 2018. But we hope to see I-829 volumes improve considerably in 2019.

IPO’s total output was about the same in FY2018 Q4 as in Q3, just with a few more I-829 processed at the expense of a few fewer I-526. Meanwhile, the number of forms received by IPO remained relatively low in Q4. There was a small I-526 surge in advance of the September 30, 2018 regional center program sunset date, but nothing like in previous years. There continue to be very few new regional center applications and amendments, and high denial rates for previously-filed I-924.

I’m putting out my PayPal link again, particularly as an appeal to industry colleagues who depend on me to research and report news. How much more work would you have to do, if blog.lucidtext.com weren’t here to watch for and process EB-5 updates? If this blog saves you considerable time and effort, consider helping to make it worthwhile for me. (I am also contemplating advertising options, but have not settled on a strategy for appropriate and effective presentation within the constraints of the blog format.)

FY2018 EB-5 Visas by Country

The US Department of State has published Report of the Visa Office 2018 Table V Part 3, which gives a tally of visas (conditional green cards) issued by country for the Employment Fifth preference (EB-5) in FY2018. The major story in the FY2018 report is the increase in EB-5 visas issued to applicants born outside of mainland China.

EB-5 in the early 2000s used relatively few visa numbers overall, and only really took off with the increase of EB-5 interest from/in China after 2008. Then China-born investors drove growth and claimed a majority of visas until the total number of EB-5 visas possible to issue hit its ceiling: the annual quota of about 10,000 visas. Since that ceiling was reached in FY2014, there’s been no room for EB-5 to grow — China and the rest of the world just have to jockey each other for the available annual visas. The decreasing number of EB-5 visas issued to China-born applicants since 2014 does not primarily reflect decreasing demand from China (China still dominates the backlog), but increasing demand from other countries that decrease the number of visas available to China.

FY2018 data shows a marked increase not only in total number of applicants from outside China, but also in the number of countries supplying those applicants, and in the number of countries with a relatively large number of applicants each. EB-5 marketers care about this, because it helps identify the range and depth of market potential outside of China. Past China-born investors care about this, because their future wait times depend on the nature of incoming non-China demand (with best case scenario being demand concentrated in a few countries that will become blocked by the per-country cap, and worst case being large total demand spread out over many countries).

We want to read EB-5 visa reports and draw conclusions about demand for EB-5 investment opportunities. So a few reminders to qualify such conclusions:

• The Visa Office report indicates the number of green cards issued for conditional permanent residence. To track visa numbers back to investor detail, it’s necessary to factor in the time between investment and visa issuance (about 1 to 5 years in 2018 depending on investor origin and I-526 processing time), and the number of visas per investor (about 3 on average).
• The Visa Office report only directly reflects demand for countries that take significantly less than 700 visas (ie less than the 7% per-country cap). For countries that exceed the cap, the number of visas issued is not the number they demanded, but the number they could get. In FY2018, Vietnam got 7% of total EB-5 visas pursuant to the per-country cap, regardless of how many Vietnamese were ready to apply, and China got 48% of visas because that’s what was left for the oldest applications after demand from undersubscribed countries was satisfied. On the other hand, India remained under the per-country cap in FY18, so its 585 visas directly reflect the number of FY18 applicants (more than threefold increase from the previous year). But keep in mind, lengthy I-526 processing times mean that the FY18 surge in India visa applications reflects a surge in investments from India that happened 1-2 years ago. For a better sense of recent demand trends, see the log of pending I-526 by country and priority date that USCIS published in October 2018.

I’ve expected to see an increasing number of visas associated with direct EB-5 investments, but that hasn’t been true so far. Regional center investments accounted for 94% of EB-5 visas issued in FY2018, as compared with 93% in FY2017 and 91% in FY2016. For reference, here is my post on FY2017 EB-5 Visas by Country

I haven’t had time yet to update and recalculate my backlog calculation spreadsheet. But I will add one table here as follow-up to ILW’s article EB-5 Industry Misunderstands Retrogression (12/31/2018). The article estimates that “India generated close to $500 million in EB5 investments in 2018, and it is on track to generate $1 Billion in 2019 and $2 Billion in 2020. Indian EB-5 is a $3 Billion opportunity in the coming two years.” The article goes on to rightly correct misconceptions about how EB-5 visa allocation works, but omits one important calculation: what happens if one puts $3 billion dollars (12,000+ visa applicants) from one country in line to a gate that can only issue about 700 visas annually.

If we want to make Row A in that table a reality, and how wonderful that would be, then we have to deal with the constraints that turn successful markets into backlog tragedies. Let’s put the pressure on Congress for visa relief. Otherwise, ethical promoters will have no option but to reduce the amount of investment they try to raise, or to support proposals dramatically increasing the minimum investment per investor.

UPDATE: I’ve added a EB-5 Timing page to collect links to data and posts related to EB-5 visa availability, visa allocation, and wait times. If you would like to order a personalized timing estimate, see the EB-5 Timing Estimates Page.

Applying data to questions (I-526 timing, visa timing)

This post applies data that’s recently become available to practical questions that EB-5 issuers and past/potential investors keep asking. [FYI: many edits made since first posting.]

Question 1: How long does I-526 take?

This question has a nice answer for new petitioners: much less time than before.

As inventory falls and flow rate increases, processing times fall. People who filed I-526 in 2016/2017 entered at the top of a mountain of pending petitions (as illustrated in Figure 1), and have suffered long processing times as a result. But people who file I-526 now in November 2018 are just standing on a molehill by comparison, plus benefiting from improved completion rates. They can expect their petitions to be processed in less than a year, I estimate. (I estimate processing times based on USCIS data for pending and processed petitions. See my I-526 time spreadsheet.)

As I-526 times improve, the many countries in the world with no visa wait (all but China, Vietnam, and (soon) India) will be able to enjoy EB-5 as a fast track once again. And project companies, investors, and program integrity all benefit from prompt attention by USCIS to investor petitions.

Question 2: If I’m a Vietnam-born person with pending I-526 or pending visa application, how long can I expect to wait for EB-5 visa availability?

This question has a better answer than many people fear. Last month when Charles Oppenheim of Department of State predicted a 7.2-year wait for Vietnam-born, he was giving a prediction for one point: people filing I-526 on October 30, 2018. If that point-in-time prediction is correct, then the wait time will be less than that for everyone who filed I-526 before October 30, 2018. The blue columns in Figure 3 mark the data points we have: actual wait times for past applicants (calculated by subtracting Final Action Date from Visa Bulletin Date in past Visa Bulletins), and Oppenheim’s future predictions. Fit a trend line through those points, and you can estimate wait times for other priority dates, between the past actual and future predictions. (The trend won’t turn out neatly linear in real life, but I think this is good for a rough estimate. If you want a better trend line, you can factor in quarterly fluctuations in I-526 filing and approvals, and guidelines for allocating visas by quarter. Or you could push for legislative/administrative fixes that would change the picture entirely.) These charts and source data are in the “Vietnam Calc” tab of my Backlog calculation spreadsheet.

[NOTE: When I first put up this post, I included a Figure 2 for China with linear trend through past visa bulletin waits for 2014 priority dates up through Oppenheim’s 14-year prediction for Chinese filing in October 2018. But the more I thought about it, the more I disliked the China chart — because that 14-year estimate for 10/2018 is questionable, and because complicating factors will likely make the China trend look more like the craggy mountain in Figure 1 than a slope. So I edited out Figure 2.]

Question 3: If I’m an India-born person with pending I-526 or pending visa application, can I expect to get a visa number in FY2019, before visas for India get used up for the year (i.e. before Department of State sets a Final Action Date for India)?

This question is tough, because the answer depends on predicting which petitions get adjudicated in the next few months, and how many. Table 1 and Table 2 below highlight the data points (from among those provided in the 10/30/2018 presentation by Charles Oppenheim) that I consider particularly relevant to the question. (These tables are also in the “India Calc” tab of my Backlog calculation spreadsheet.)

The worst case scenario is that in the next couple quarters, USCIS approves a lot of the I-526 pending for India-born people who filed I-526 in 2013-2017. If that happens (and the newly-approved petitioners quickly become documentarily qualified for a visa), the result could be that no one born in India who filed I-526 more recently will get a visa number in FY2019, no matter how quickly their I-526 was/will be processed or when they filed I-485 or the visa application. This risk exists because visa numbers get issued to qualified applicants in order by priority date, not based on when they filed their visa applications. The risk is accentuated by the fact that Charles Oppenheim at DOS is required by statute to dole out available visas gradually over the course of the fiscal year (no more than about 27% each quarter in the first three quarters), not all at once to as many people as qualify for them. That delay gives time for the pool of documentarily qualified applicants to grow, as USCIS approves more petitions.

The best case scenario is that in the next couple quarters, the pool of India-born people qualified for a visa doesn’t grow much, and additions to the pool mainly consist of people who filed I-526 recently. In that case, everyone already qualified for a visa as of Q1 FY2019 (500+ people) could actually get a visa in FY2019. Plus a few more people (about 60 investors with their families) who will get I-526 approval and become documentarily qualified in FY2019 may also get allocated visas before the approx 700 visas available for FY2019 run out. The best case scenario is possible because expedited projects have been popular with Indians, USCIS can be slow to process older I-526 (and has a lot of older petitions in the backlog from countries besides India), and the process between I-526 approval and becoming documentarily qualified can also be very slow.

The facts in Table 1 and Table 2 suggest to me that an India-born person filing I-526 today is unlikely to get a visa number in FY2019, regardless of how quickly they can get I-526 approval and qualified for a visa. There are just so many older petitions and applications already in the system. I don’t have my life savings and family on the line, however.  If you do have a major life decision depending on EB-5 timing, you should spend more time with the reports and spreadsheets to make your own estimate between the best and worst case possibilities. And talk with the immigration lawyer about limitations and benefits of being at various points in the process (I-526 pending, I-526 approved but not yet documentarily qualified, I-485 pending, documentarily qualified at NVC…) at the time when DOS publishes a Final Action Date for India.

For anyone who doesn’t manage to get a visa number in FY2019, don’t be too discouraged. India will have a trend line, like Vietnam as discussed above. You don’t automatically wait 5.7 years for a visa by virtue of having been born in India. Your wait time will depend on your priority date, with dates before October 2018 promising shorter wait time.

My post EB-5 Visa Waiting Line and Visa Allocation explains in more detail how visa allocation works. FYI, the Telegram group https://t.me/EB5VisaGroup notified me that they assembled their own India prediction spreadsheet. I’m not posting it here because I don’t know how to explain all their calculations and sources, but you can reach out to the group to request their additional analysis.

To the extent that my analysis and reporting benefits your decision-making, please consider my PayPal contribution option (corrected link). My spreadsheets and posts take a lot of time and thought that can only be rewarded if others share their benefit. I hope the work helps my clients who need information, and an industry that needs transparency, but it’s a sacrifice for me personally as a service provider dependent on new EB-5 business.

AILA/IIUSA Forum Updates (Kendall, Oppenheim, visa availability)

Last week I attended the 2018 AILA & IIUSA EB-5 Industry Forum, which featured appearances by new IPO Chief Sarah Kendall and Department of State Visa Control Office Chief Charles Oppenheim.

Ms. Kendall is a career civil servant and spoke accordingly. She gave the impression of being competent, in control, and unlikely to say anything unexpected. I didn’t note anything major in her speech that I hadn’t already heard from the USCIS Policy Manual, OMB Unified Agenda, or previous stakeholder meetings. (UPDATE: Here is a copy of Ms. Kendall’s prepared remarks.) The headlines: no update on regulations beyond what OMB said, and no significant new input on the hot issues of redeployment, bridge financing, material change, or minors as investors. Stakeholder meetings are not the proper venue for policy announcements, so I suppose there’s really not much to do but repeat existing guidance and say “thank you, we’ll consider it,” for everything else. One would expect Ms. Kendall to have a law enforcement orientation, considering her background. And indeed she stated that “focus must be on program integrity,” and listed these objectives for IPO: improve transparency, protect national security, lawful administration of our nation’s laws.  I appreciate that she started with transparency, which is foundational to the other two objectives. And it was gracious of Ms. Kendall (and former Interim Chief Julia Harrison) to attend the AILA/IIUSA event and take time to chat with attendees.

In the past I’ve sometimes felt like a lone crusader with my spreadsheets and numbers reports. I attended the AILA/IIUSA forum in person partly because I suspected that Charles Oppenheim would give information about visa numbers and wait times that my clients need to know, and no one else would process it or publicly report on it. But I was wrong. A wonderful panel on visa numbers not only provided a very extensive data set but analyzed and drew actionable conclusions from it, and then IIUSA made the right choice to promptly publish the full presentation where anyone can access it. And now other people are already reporting on it, without pausing to worry about messaging. Integrity depends on transparency – an important lesson for everyone.

Here is the gold mine: Presentation Materials from Department of State Visa Control Office Chief Charles Oppenheim (UPDTATE: IIUSA has also published commentary on the presentation.)

The slides provide the most comprehensive and current set of visa-availability-related data yet, with helpful interpretation and conclusions. Bottom line: how long should an investor filing I-526 on October 30, 2018 expect to wait for an EB-5 visa number?  Mr. Oppenheim made the following prediction: China, 14 years; Vietnam, 7.2 years; India, 5.7 years; South Korea, 2.2 years; China-Taiwan, 1.7 years; Brazil, 1.5 years. Here’s the famous slide:

These time predictions refer to the time between I-526 filing and visa availability for people filing I-526 on October 30, 2018. People who filed I-526 before October 30, 2018 have fewer people ahead of them in line, and thus can expect correspondingly shorter wait times. People who file later can probably expect longer waits (unless trends or rules change, as they could). The predicted visa wait times for South Korea, Taiwan, and Brazil are now short enough as to be likely imperceptible (i.e. even shorter than I-526 processing time). Mr. Oppenheim foresees that South Korea, Taiwan, and Brazil will remain current (no cut-off date) through 2019 and probably 2020. The predicted wait time for an India-born investor filing today has lengthened since the last prediction from April, but not as much as I’d feared. Mr. Oppenheim now predicts that the Visa Bulletin will have a Final Action Date for India “no later than July 2019.” In other words, the annual EB-5 visa allocation available to India in FY2019 is expected to run out in July. In October 2019, when new FY2020 visas become available, India will have a Final Action Date in 2017, meaning that India-born applicants with priority dates before the 2017 Final Action Date will then be able to apply for visas.  As for China, Mr. Oppenheim predicts that by October 2018, the Final Action Data for China-born applicants will progress to 10/22/2014 (best case) or 10/8/2014 (worst case), and that China will advance (at best) two months in 2019. Mr. Oppenheim expects to be able to move Vietnam’s Final Action Date as far as September 2016 this year, before the FY2019 visas available to Vietnam run out.

For the full background to these predictions, and very helpful commentary on how the visa process and allocation work, potential variability, and what we do and do not know, see the full slide presentation and my voice recording of the panel. (And if you want all the backlog-related data I know, though all you really need is Charlie’s predictions, see my backlog spreadsheet.)

A shout-out to other colleagues reporting on the conference:

• EB-5 Update – New State Department Data Released, by Bernard Wolfsdorf, Robert Blanco, Joseph Barnett, and Vivian Zhu
• Department of Sate Gives EB-5 Backlog Projections and Anticipates Cutoff Dates, by Matthew Galati
• 7 Things We Learned from New EB-5 Program Chief Sarah M. Kendall, by Joseph Barnett

Wolfsdorf Rosenthal is holding a free webinar on 11/8 to discuss the DOS data and implications.

See also the conference program/RCBJ Business Journal available online. I particularly recommend these articles:

• Analyzing the Recent Trend of EB-5 Expedited Processing, by Joseph Barnett, Partner, Wolfsdorf Rosenthal LLP
• Summary and Analysis of Litigation to Expand EB-5 Visa Capacity, by Carolyn Lee, Partner, Miller Mayer

Regarding legislation and potential developments in Washington, I did not hear anything particularly newsworthy. Industry lobbyists say that they see hope for the future because they are finally united for the first time. This talking point would be more encouraging if we hadn’t heard the same statement last year, before the last attempt at EB-5 legislation that excluded most of the industry until the 11th hour and then met with industry discord. The panel last week did not specify compromises or concessions that have been made since then, and did not reflect specifically on what went wrong. The panel foresaw possibility for renewed legislative efforts in 2019, initiated in the House. EB-5 has best chance of getting attention after border wall funding and DACA are no longer taking all available oxygen, and after more representatives have been educated on EB-5. The panel hinted that we might be looking at more continuing resolutions in December, particularly for DHS funding if Democrats do well in the midterms. The proposal to eliminate per-country caps (in the Yoder amendment to the House version of the DHS funding bill, and H.R.392) got little mention, and no one said they thought it likely to be enacted.

FY2018 Q3 EB-5 Form Processing Statistics

After months of famine we suddenly have a feast of EB-5 numbers: data for FY2018 EB-5 form completions through September 2018 from the USCIS/IIUSA meeting on October 5, data for pending I-526 as of October 2018 from an IPO mailbox response to my blog reader, per-country I-526 data through FY2017 on sale by IIUSA, data relevant to the EB-5 visa waiting line from a wonderful panel with Charles Oppenheim at the AILA/IIUSA conference, and now official figures from USCIS for EB-5 forms received, approved, denied, and pending in the third quarter of FY2018 (April to June 2018). I’ve already reported on the first two data sets, and will cover the Oppenheim presentation in a forthcoming post when I’ve had time to process the information. As time permits, I may also do a post that tries to make sense of how these various data sets intersect, and some apparent contradictions and mysterious gaps. But for now, here are my charts highlighting trends in the official FY2018 Q3 data. The numbers come from the USCIS Immigration and Citizenship Data page, with Form I-526 and I-829 data in the Employment Based subsection, and Form I-924 data in the Forms subsection in the “All Forms Report.”

A few notes:

• Overall, IPO is receiving fewer forms and processing more forms than before. That should be a good sign for processing times at least, and will result in smaller backlogs. However, performance improvement is currently all focused on I-526. Q3 showed a record-breaking number of I-526 processed (22% improvement over the previous quarter) but drop in number of I-924 and I-829 processed.
• Q3 I-526 receipts were lower than any quarter I’ve recorded since 2013, likely reflecting concerns about visa wait time.
• In Q3, I-829 receipts exceeded I-526 receipts for possibly the first time ever.
• I-829 completion rates look terrible, with an almost-linear 65% drop in completions over the last four quarters. What’s happening, I-829 team? Why are you getting fewer and fewer I-829 adjudicated? IPO should put more resources on I-829 adjudication, considering the receipt trend across all forms.
• A surprising 51% of Form I-924 adjudicated in Q3 were denied. The denial rate for I-829 was higher than usual, at 13%. The I-526 denial rate remained at 9%.
• USCIS is not infallible when it comes to inconsistencies, and the Q3 reports contain significant revisions to the Q2 and Q1 numbers previously reported. In the I-829 reports, for example, the May report indicated 1,046 receipts in Q1, the July report indicated 694 receipts in Q1, and now the October report indicates 862 receipts in Q1. You make us doubt that you know what happened in with I-829 in Q1, USCIS! This should make USCIS recognize and sympathize with the difficulty of reporting consistent numbers, even with the best of intentions. FYI, here is my file on the ongoing mystery of the pending petition count.

Pending I-526 by country as of 10/2018

There’s an EB-5 Support page on the USCIS website that provides an email address for IPO, and instructions for how and when to communicate through the IPO mailbox. I’ve dismissed this contact option, having only heard and experienced reports that emailing the IPO mailbox yields nothing but a canned response and no action. But what do you know, sometimes it works. On October 25, 2018, IPO responded to an email from one of my readers with this extremely valuable information: “Shortly after replying to your email, Immigrant Investor Program Office management asked the webmaster to post online a table containing I-526 data. Here’s the link: https://www.uscis.gov/sites/default/files/USCIS/Working%20in%20the%20US/i526list.pdf” The link leads to a table that breaks down all I-526 pending at IPO as of October 2018 by investor country of origin and priority date. (UPDATE: USCIS removed the file in July 2019. Here is the copy I saved.) Thank you IPO management for this transparency! Program integrity depends on informed decisions, which in turn depend on information. We understand that these figures are probably subject to change since they’re so recent, and haven’t gone through the months-long review process that normally precedes public data posting. That’s just fine — our decisions need data timeliness far more than minute precision. And thank you reader for making the request and for bringing the answer to public attention. Otherwise this data treasure might have rested unnoticed on the USCIS website, or been hoarded by a few.

The charts and tables below highlight features of the data that I consider particularly interesting. The pending I-526 numbers by country help explain why Department of State predicts backlogs and visa wait times for certain countries. The pending I-526 numbers by receipt date illustrate how long currently-pending petitions have been waiting for adjudication. And the figure for total pending petitions, combined with data from other sources, suggests that I-526 receipts may have plummeted in FY2018. That’s bad news for the US economy, job creation, and destitute business plan writers like me whose revenue depends on new EB-5 demand. But it’s good news for EB-5 program sustainability. So long as the EB-5 visa cap remains at about ten thousand for investors plus family, the program can unfortunately only sustainably accommodate three to four thousand investor I-526 per year on average.

UPDATE: I’ve added a EB-5 Timing page to collect links to data and posts related to EB-5 visa availability, visa allocation, and wait times. If you would like to order a personalized timing estimate, see the EB-5 Timing Estimates Page.