Facing FY2023, Suggested Articles, October 2022 Visa Bulletin

Today marks the end of Fiscal Year 2022, and the first September since 2015 that I haven’t spent reporting on Congressional news and the appropriations process, waiting with bated breath for updates about regional center program authorization.

Thanks to the EB-5 Reform and Integrity Act of 2022, we now have until September 30, 2027 to panic about legislation to reauthorize the regional center program. EB-5 is stable today in the sense that it neither requires nor anticipates near-term legislative action.

My dream for the future is that EB-5 will also stabilize in the sense of offering a reliable opportunity to immigrate based on investment. In this dream, investor petitions will be processed. Policy will be written. Adjudications will be based on transparent standards, and will have a predictable timeline. Visa availability will be transparent and predictable. Investors who satisfy all the requirements will get a chance to immigrate before they age out, give up, or die. An investment will be an investment, not an unpredictable series of deployments. Escrow protection will be possible. Regional centers will know where their status and responsibilities begin and end. EB-5 issuers will be constrained to make offerings that can and do bear scrutiny as investments. Reasonable exit strategies will be expected and possible. The experience of existing investors will influence a regional center’s ability to attract new investment. Good actors will be empowered to plan well based on good information about the immigration process and success factors. Bad actors will not flourish in impunity underwritten by long processing queue times, policy uncertainty, misdirected adjudication, and lack of communication from USCIS. Both the government and stakeholders will put stock in what happens after investors make investments and file petitions. We’re partway there, and with so much scope for improvement going forward.

To the extent that words can help, I hope and plan to bring out articles on FY2023 visa availability and reserved visas implementation, the scope of exemplar approval, denial factors and issues for attention in IPO adjudications, questions about regional center and investor status after December 29, China timing factors, India timing factors, market size potential and constraints, issues and questions in new forms, and changing project success factors in the wake of the new law. In the meantime, I’ll suggest a reading list of articles from other sources, followed by a comment on the October 2022 visa bulletin.

Reading list:

  • Fiscal Year 2023 Employment-Based Adjustment of Status FAQs” (09/08/2022) at USCIS.gov. A detailed and informative Q&A from USCIS about the specific processes involved in employment-based visa allocation. Predicts the number of FY2023 EB visas available, settles a question about EB-5 visa carryover, and offers valuable practical tips for I-485.
  • Reserved Visa Rules, Possible Future Visa Allocation, and Recommendations” (09/09/2022) on the IIUSA blog. Written by Joseph Barnett and Lee Li in consultation with Charles Oppenheim, this article provides clear and updated analysis on reserved visas. The article revised my understanding, particularly with respect to how reserves interact with country caps. Once I get feedback from the authors on a couple points, I’ll publish a revision to my article from April.
  • IIUSA Questions and Comments for October 19, 2022, EB-5 Stakeholder Engagement (09/16/2022) IIUSA did nice work in articulating many pain points in IPO operations, pointing out why the problems are problems, and suggesting feasible solutions. Now that someone has done all the work to write out these good comments, let’s all read them and amplify them with repetition. (Also FYI, here are the comments I submitted to USCIS, focused on my top concerns of transparency, and the status of pre-RIA regional centers and investors.)
  • IIUSA Teams Up with Kurzban Kurzban Tetzeli & Pratt to Seek USCIS Records on EB-5 Source of Funds Adjudications (9/7/2022) on the IIUSA blog. This article reports on one step in a very important battle: taking on the new USCIS practice of denying I-829 over source and path of funds that were approved at the I-526 stage. I’m glad to see this critical issue getting attention and action.
  • How long must you keep EB-5 capital at risk? (9/27/2022) in EB5 Investors Magazine. Robert Divine explains how the EB-5 Reform and Integrity Act changed the EB-5 sustainment period, and the consequences for new investors and redeployment. This is game-changing good news, if USCIS also sees what Robert sees in the law. Another point worth amplifying.

I considered writing an article about the October 2022 Visa Bulletin, discussing what it means for demand to “materialize,” as the visa bulletin notes like to say. Also, pointing out which applicants the visa office accounts for in setting monthly visa bulletin dates, which applicants (by contrast) we need to account for in estimating visa wait times, and what all that means for predicting future action dates. But instead, I made a picture. I hope that just looking at this image can help conceptually.  After examining the picture, you may want to consult this presentation and my data summary for most recent available estimates of the number of applicants hidden in the EB-5 process clouds (not yet on the Visa Control radar, but important for us because determinative for future visa bulletins). And then if you still really wish you had an article about the Visa Office perspective behind visa traffic control, I recommend Note F in the November 2021 Visa Bulletin, this article, and the Chat with Charlie for the April 2021 visa bulletin.

Genuine EB-5 Engagement Promised

I’m overjoyed to report a positive development. For the first time in years, USCIS is holding an EB-5 stakeholder engagement that promises to include engagement (not just updates and not just listening, but “a question-and-answer session to answer questions“(!!!) From 2010 to 2017, USCIS used to hold quarterly EB-5 engagements with updates and live Q&A. I complained at the time about the quality of these engagements, but at least they happened. Communication between USCIS and the EB-5 world started to break down with the end of quarterly meetings in 2018. Over the last five years, there have very few EB-5 updates from USCIS, and only three events that could be considered “engagements” in the sense of involving any dialogue between USCIS and EB-5 stakeholders. No wonder we’ve ended up in such a mess of frustration, hostility, and litigation. But now, USCIS is reaching out with a chance to talk. What a good sign!

USCIS Immigrant Investor Program Stakeholder Engagement Wednesday, Oct. 19|2-3 p.m. Eastern

U.S. Citizenship and Immigration Services (USCIS) invites you to participate in a stakeholder engagement on Wednesday, Oct. 19, from 2 to 3 p.m. Eastern.

During the first part of the engagement, we will share updates on the EB-5 Immigrant Investor Program. We will then hold a question-and-answer session to answer questions, listen to your comments, and seek your individual feedback. We will not address case-specific questions, questions outside the scope of the engagement, or issues under active litigation or likely to be litigated.

We are committed to public engagement, and our stakeholder engagements provide valuable feedback as we work to improve our programs. Participation in this engagement will be virtual. If you would like to submit a question in advance, please send your question to the Public Engagement mailbox at public.engagement@uscis.dhs.gov with the subject line “Question: EB-5 Engagement October 19, 2022” by 4pm Friday, Sept. 16.

To Register: 1. Visit our registration page. 2.  You will be asked to provide your email address and select “Submit.” 3. On the next screen, you will see a notification that you successfully subscribed to this event. Once we process your registration, you will receive a confirmation email with additional details. If you have any questions, or if you do not receive a confirmation email within three business days of submitting your registration, please email us at public.engagement@uscis.dhs.gov. To request a disability accommodation to participate in this engagement, email us at public.engagement@uscis.dhs.gov by 4 p.m. Eastern, Friday, Oct. 14.  Note to media: This webinar is not for press purposes. Please contact the USCIS Press Office at media@uscis.dhs.gov for any media inquiries. We look forward to your participation!

USCIS Processing Times Webpage Redesign

From: ProcessingTimesFeedback <ProcessingTimesFeedback@uscis.dhs.gov>
Sent: May 11, 2022 5:18 PM
To: Suzanne Lazicki <suzanne@lucidtext.com>
Subject: RE: USCIS Processing Times Webpage Redesign Webinar

Excellent feedback!

Thank you,

USCIS

From: Suzanne Lazicki <suzanne@lucidtext.com>
Sent: May 11, 2022 4:54 PM
To: ‘ProcessingTimesFeedback@uscis.dhs.gov’ <ProcessingTimesFeedback@uscis.dhs.gov>
Subject: USCIS Processing Times Webpage Redesign Webinar

Thank you for the opportunity to provide feedback for the USCIS Processing Times Webpage Redesign Webinar to be held on May 12, 2022. I appreciated the announcement on May 5 that USCIS is Simplifying, Improving Communication of Case Processing Data. I would like to point out the following issues that make the new processing times report design not clear, not transparent, not meaningful, and not helpful.

  1. The https://egov.uscis.gov/processing-times/ page now reports a number that is apparently arbitrary. What is relevant about 80%? Why not report the median age of recent completions? (The USCIS historical processing times report gives the median, which is logically more indicative of “normal” and “average” processing.) Why not the first and third quartile? (That would at least be meaningful statistically.) Why not 93%? (Significant if the threshold for case inquiry.) What possible justification/explanation is there for choosing to report 80% on this page? Unless explained, it would appear the USCIS chose 80% to 1) cover up the major deviations from FIFO processing that had been exposed by the previous “estimated time range” method, 2) prevent petitioner inquiries by not reporting median or average processing, and 3) confuse and disguise the derivation of the Case Inquiry Date, which is not calculated from the 80% month.  I suggest that this page would be more meaningful if it reported the median (or even better, the median and the average) age of recently-adjudicated cases. The number of months used to calculate the Case Inquiry Date should also be disclosed.
  2. The https://egov.uscis.gov/processing-times/ page is not clear or transparent about the Case Inquiry Date – the single most important piece of information on the page. The “get inquiry date” tool on this page uses a month multiplier that is not disclosed, and is not equal to the 80% month reported on the page. The page vaguely says “we only allow inquiries for cases that are well outside the processing time listed above.”  To be transparent, this page needs to state “93% of recent adjudications were completed within ___ months,” and then explain that this number of months is used to calculate the case inquiry date.
  3. The case inquiry date and answer to the question “When can I ask about my case” are both unreasonable.   To protect USCIS from Mandamus litigation (which must be much more expensive to the agency than individual inquiries), the processing times report needs to define a reasonable boundary for “normal” processing. Outside the 93rd percentile is too-obviously a boundary for extreme outliers, not a definition of what’s normal – especially given the well-documented spread of processing times. For example, for Form I-829, the historical times page gives a median of 41.5 months in 2022, and the I-829 Case Inquiry Date is calculated at 64.8 months. What judge will believe that a I-829 petitioner should have to wait 15 months longer than the median processing time to even inquire about case status? The 64.8-month case inquiry boundary in the processing times report is too-blatantly unreasonable, and appears to be arbitrarily set to prevent inquires.
  4. Strictly speaking, the processing times report simply and only reports past performance. But the USCIS Report and More Info pages do not speak strictly, but as if the past performance numbers were true for all time and predictive for the future.
    1. “We display case processing times for select forms and locations to let you know how long it generally takes to process benefit requests.” This sentence conflates “how long it has recently taken” with “how long it generally takes.” This conflation is false and misleading, implying a status quo where none exists. USCIS has a history of large processing time fluctuations, and actively plans on processing time changes going forward. The sentence had better be “We display case processing times for select forms and locations to let you know how long it has recently taken to process benefit requests.”
    2. “80% of cases are completed within”  This language is misleading, when in fact the number only represents “the amount of time it took us to complete 80% of adjudicated cases over the last six months.” At minimum, the verb “are” should be replaced with “were” or “have been.” Or could replace “80% of cases are completed within”  with “80% of recent adjudications completed were within”
    3. “The earliest you can submit questions is _____. Please do not contact us before this date.” This statement has two problems: it directly uses past performance to predict future results, and it implies that the date given in the sentence is a firm barrier not subject to constant change. The sentence copies the time it took to complete 93% of adjudications over the past six months and pastes it into the future, which is only meaningful if USCIS plans for no improvements over past performance. But USCIS does plan improvements, so the prediction is not meaningful. And it is not even a prediction, given that a petitioner consulting the page from month to month will see the “earliest you can submit questions” sentence populated with ever-changing dates that fluctuate forward and backward in time depending on recent adjudications. To make the sentence transparent and meaningful, better to say something like “You may not submit questions until your case has been pending longer than __% of recent adjudications. If your receipt date is before _______, you may submit questions.” It’s meaningless to give a sentence that predicts a future date, if the given date is not actually intended or usable as a prediction.
  5. USCIS announced new cycle time goals on March 29, 2022 for multiple forms. If USCIS is serious about making progress toward these cycle time goals, and willing to be transparent and responsible to the public, USCIS should regularly publish current cycle times for those forms.

USCIS EB-5 Feedback Invitation

The last time USCIS held a public engagement that engaged with EB-5 stakeholders (i.e. went beyond prepared remarks to respond to stakeholder questions) was November 7, 2017. The last time USCIS engaged with EB-5 stakeholders in any form whatsoever was November 15, 2020, when a video of prepared remarks was uploaded to Youtube. (I keep a log of stakeholder meetings back to 2010.) At last, we’re being offered a chance to ask questions, at least. USCIS is not offering a stakeholder meeting yet, but hinting that one may come in the future. I am encouraged by this evidence that USCIS remembers the existence of EB-5.

From: U.S. Citizenship and Immigration Services <uscis@public.govdelivery.com>
Sent: September 7, 2021 10:29 AM
Subject: Ask USCIS a Question: EB-5 Immigrant Investor Program

EB-5 Immigrant Investor Program

Do you have questions about the EB-5 Immigrant Investor Program, also known as the EB-5 program? USCIS would like to hear from you. Your feedback will help us plan future engagement events, update program content on our website and prepare communications materials.

Statutory authorization related to the EB-5 Immigrant Investor Regional Center Program expired at midnight on June 30, 2021. If you have questions about the EB-5 program, the sunset of the Regional Center Program, or any non-case-specific concerns, we invite you to submit them by emailing public.engagement@uscis.dhs.gov by Sept. 23 at 4 p.m. Eastern. Put “EB-5 Question” in the subject line. We will not address case-specific questions. Note to media: Please contact the USCIS Press Office at media@uscis.dhs.gov for any media inquiries.

Responding to Direct EB-5 RFEs

In August 2021, the USCIS Investor Program Office approved only 16 I-526 petitions, but sent out 87 Requests for Evidence (RFE) on I-526. RFE response presents a strategic challenge and opportunity for petitioners: another chance to strengthen the basis for approval and to avoid adding basis for denial.

Most direct EB-5 RFEs ask about the business plan. By the time USCIS reviews I-526 years after filing, every I-526 business plan is deficient at least in the sense of being outdated. The adjudicator reviewing the I-526 does not only want to know what the plan used to be, but how the plan has turned out. A business plan may also be deficient in the sense of being incomplete – lacking validation, or lacking relevant detail about use of investment and job creation. In the worst case, a carelessly-prepared business plan may positively demonstrate that the EB-5 investment does not meet EB-5 requirements.  So what can be done, when USCIS sends an RFE that identifies “deficiencies,” states that “Petitioner has not established eligibility for the benefit sought” and warns “a petitioner may not make material changes to a petition that has already been filed in an effort to make an apparently deficient petition conform to [USCIS] requirements.” How can one correct deficiencies, and also not make material changes? It takes experience, care, and strategy.

Having helped with many RFE responses as a business plan writer, I see three strategic steps:

  1. Identify the USCIS adjudicator’s specific concerns. It helps to be familiar with RFE template language, so that you can distinguish case-specific questions from the boilerplate content.
  2. Regardless of the specific RFE questions, identify what the adjudicator needs to know about the enterprise, investment, and job creation order to approve the I-526.
  3. Prepare an RFE response that addresses specific concerns, provides clarification and evidence to further support compliance with EB-5 requirements, and emphasizes the non-materiality of any changes from the information and evidence previously filed with Form I-526.

Step 1: Identify Explicit Adjudicator Concerns

I start by looking at the RFE and asking myself: “What does the adjudicator think is deficient about this I-526 petition?” Note that business plan-related questions that the adjudicator wrote for the RFE are normally located between these two template sentences: “Upon reviewing the business plan, USCIS finds that the evidence in the record does not establish that the business plan is Matter of Ho compliant” and “For the reasons identified above, the business plan is not credible.” Everything before that first and after that second sentence in the job creation/business plan section is normally template content: generic language that’s simply cut and pasted verbatim into every RFE job creation section. The template content is there for reference, and not necessarily a question or concern. Petitioners tend to be particularly spooked by a 2-3-page list of bullet points for business plan content, with item requests in categories from “Market Analysis” down to “Projections.” That list is in the RFE because it’s part of the RFE template (and I’ve seen versions of it since at least 2012). That list may or may not be in your RFE because the adjudicator read your business plan and found it to be deficient on any of those bullet points.

Step 2: Identify Underlying Eligibility Issues

Strategy does not stop with identifying specific questions in the RFE.  Lazy adjudicators are known to send RFEs with no case-specific questions at all – just an uncustomized RFE template. I’ve seen two such RFEs in the last month – a hint that the adjudicator didn’t even really look at the I-526 record yet, but just sent a generic RFE to get the ball out of the court for awhile. Or, sometimes RFEs specifically request evidence that does not exist for the particular business. Or the petitioner may know of clarifications that need to be added to the I-526 record, although the RFE didn’t request them. So it’s wise to not only react to specific RFE requests, but to stand back and think about the basic eligibility issues, and what can best be added to the I-526 record to support eligibility for I-526 approval and the road ahead.

For example, when an RFE asks for an improved business plan, the eligibility issue is job creation. An improved plan may not be necessary if it’s now possible to replace business plan predictions with the even more compelling job creation evidence of payroll records for employees already hired. When an RFE asks for supply contracts, the eligibility issue is whether the business is viable and active, to be able to create and sustain jobs. So if the business does not have supply contracts, the petitioner can think of other evidence to address the underlying concerns about business activity and feasibility. When the adjudicator was too lazy to look at the I-526 record and ask specific questions, the petitioner can still grasp the RFE opportunity to preemptively provide relevant answers.

For a recent RFE response, I worked with the client to prepare a business plan addendum designed to clarify ambiguities in the I-526 record and to explain COVID-19-related business plan adjustments in context of on-going eligibility. The client had received a generic RFE, with no specific questions about I-526 inconsistencies or subsequent developments. We responded by giving the adjudicator the correct and up-to-date information that we knew he’d need to understand and approve the petition, hopefully preempting confusion and challenge.  

EB-5 eligibility on the project side comes down to three things: (1) investment (2) in a new commercial enterprise (3) that creates jobs. Regardless of what specific items an RFE may request, the I-526 should be approved if the record manages to provide clarity and a preponderance of evidence for eligibility on those three basic points.

Step 3: Avoid Material Change Challenges

Many RFEs include this language in the “Conclusion” section, to remind petitioners of the peril in submitting new information.

If Petitioner submits updated or revised documents, please note that “[a] petitioner must establish eligibility at the time of filing; a petition cannot be approved at a future date after the petitioner becomes eligible under a new set of facts. See Matter of Katigbak, 14 I&N Dec. 45, 49 (Comm. 1971). Therefore, a petitioner may not make material changes to a petition that has already been filed in an effort to make an apparently deficient petition conform to [USCIS] requirements.” Matter of Izummi, 22 I&N Dec. 169, 175 (Assoc. Comm’r 1998); see also 8 C.F.R 103.2(b)(1).

To navigate this Catch-22 for RFE business plan updates, the business plan writer should (1) know what was in the filed I-526, (2) take care to present new facts in context of continuity with the original I-526 filing, and (3) be able to support the basic message that the investment was eligible at the time of filing and remains eligible to this day, even through business developments and document updates. A good RFE business plan update takes care and labor, because it looks backward as well as forward. I start by reading the thousands of pages originally filed with I-526, so that I know where consistency can be highlighted and where new information needs explanation.  I do not only read the original business plan, because when USCIS says “business plan” they really mean “business plan plus supporting evidence,” and business plan updates involve supporting evidence as much as the document that says “business plan” on the cover.  

In the excitement of filing I-526, many people think about documents as mere formalities that exist to check boxes. I-526 can get filed with a document that says “business plan” on the cover, but that does not clarify and validate the specific business and how it meets EB-5 requirements. Unfortunately, some EB-5 business plan writers just specialize in business plan-like formatting, while others follow a snow job strategy of making the plan so confusing and long that the adjudicator will probably just approve it to avoid the work of wading through it.  But when an RFE comes, things get real. The I-526 RFE basically says “your business plan did not just check a box and I do actually want to understand it, and to be convinced that your specific investment qualified and still qualifies for EB-5.” At that point, it’s time to value a business plan with genuine business plan content and shaped by EB-5 expertise. And it’s time to look past the RFE questions and challenges to think through what specifically USCIS needs to know for the petition to succeed.

For more information, see my EB5 Investors Magazine article on Strategies for I-526 RFE business plan updates, and my RFE service page.

Visa Processing and I-829 investigation

Visas cannot be issued to regional center applicants while the regional center program is expired, but processing steps short of visa issuance can theoretically be taken, if USCIS and Department of State are willing. USCIS appears to be doing nothing with pending regional center I-485, but Department of State confirms that it is still working on regional center visa application documents — at least for now. The following Q&A is transcribed from minute 17:30 of the Youtube Chat With Charlie for the September 2021 Visa Bulletin.

Q: Is NVC still processing the documents that are being submitted by R5 and I5 applicants who were previously contacted despite those preferences having expired as of June 30?

A: The answer is yes, at this time the National Visa Center has not implemented any type of changes and continues to be processing the cases submitted by R5 and I5 applicants who were previously contacted. These procedures remain under constant review and they may need to be changed if Congress does not authorize an extension of the I5 and R5 categories in the future.

[September 7, 2021 Update: I’m told that NVC has started sending emails with this content, contradicting what Oppenheim said in the chat.

“The EB-5 category pilot program has expired as of June 30, 2021, for applicants seeking a visa under the Regional Center Program.
This includes the following visa categories:

  • I5, for an investor Pilot Program in a targeted area
  • R5, for an investor Pilot Program not in a targeted area

The National Visa Center (NVC) will not act on any new or pending EB-5 visa petitions as described above until further notice. Please do not submit any additional fees or forms to NVC.

If this visa program is extended by Congress, new notification letters will be sent to all case parties. Unfortunately, we cannot predict when a decision will be made. All previously submitted fee payments will remain valid if this program is extended in the future.”]

Other insights from the September and August Chats with Charlie: USCIS is expected to use the Dates for Filing chart for all EB categories in October 2021, no EB categories that aren’t already current are expected to become current in FY2022, Vietnam EB-5 is expected to remain Current throughout FY2022, and only China is expected to have a Final Action Date for EB-5 in FY2022. Mr. Oppenheim stated that he is moving dates based on the numbers theoretically available, despite the pandemic restricting visa issuance in practice. He noted the large EB visa limit for FY2022 (262,288, which would mean a record 18,622 visas theoretically available to EB-5), and also: more numbers available doesn’t necessarily mean more visas can be processed, considering staffing constraints and on-going COVID-19 restrictions.

With the USCIS Investor Program Office currently having little to do but work on Form I-829, I’m trying to find out whether they are, indeed, working on I-829, and more about the I-829 inventory. If you have a Form I-829 pending, or recently approved or denied, could you share a couple details about your case status and experience? I have set up a quick Google Form. (Or if you’d like to share info outside the form, just email me at suzanne@lucidtext.com, or Telegram to 626.660.4030.) Thanks!

Updates (reauthorization, regulations litigation, FY2021 Q3 processing data)

Reauthorization Update: On Wednesday 8/25 at 12PM EDT, the EB-5 investor organization AIIA will hold a webinar to update stakeholders on efforts for legislation to reauthorize the regional center program and protect investor interests. Register here to participate live in the AIIA webinar (or check the Youtube channel later for a recording). See also the most recent AIIA newsletter. AIIA has been unusually open about sharing whatever information they can gather from Congressional staffers and industry contacts about EB-5 legislation, and I recommend the resource. I am not a primary source for advocacy info or opportunities.

Regulations Update: USCIS has indicated that it will appeal the Behring Regional Center decision, which restored the old $500,000 investment amount and TEA rules. For more background, see this EB5 Investors Magazine article and this article by Behring Regional Center. It seems clear that the EB-5 investment amount will not change by regulation any time soon, since court cases take time. USCIS will likely continue to accept I-526 based on $500,000 for some time. However, will USCIS go on to approve I-526 filed today at the $500,000 level? Discuss with your lawyer what will happen to eligibility for pending I-526 if USCIS wins the appeal, and the new regulation thus not vacated after all.

Processing Update: Meanwhile, I continue to get real-time updates that IPO has been handling only a handful of I-526 petitions per day. But thanks to the lack of FIFO discipline, IPO is assigning new as well as old cases, and a number of I-526 filed in late 2019 are already getting reviewed. So some direct EB-5 petitioners will enjoy relatively short I-526 processing times – a welcome development so far as it goes. EB-5 integrity would get such a boost if we could expect that every I-526 would get USCIS attention in months, not years!  So far, the official USCIS Immigration and Citizenship Data page reinforces what my leak says: that productivity at the Investor Program office has still not improved under the Biden administration, and in fact has gotten worse for I-829 as well as I-526 through June 2021 — according to the FY2021 Q3 update. I continue to wait for new leadership at IPO to address this trend. (I am not reporting on receipts in the FY2021 Q3 USCIS report, because I note an error. The report is missing hundreds of I-526 receipts that were received during the reporting period on June 29 and 30, but apparently physically entered into the case tracking system in the first days of July, outside the reporting period.)

Direct EB-5 Resources

The permanent direct EB-5 program has been the focus of new interest, now that the regional center program has expired until the industry can agree on legislation that Congress will agree to pass. Direct EB-5 offers valuable opportunities, and many challenges.

I will write more as time permits, but for the moment note that I have a detailed and well-documented Direct EB-5 Page to address questions about how direct EB-5 works.

I mention this page again, because I am receiving advertisements for direct EB-5 deals that appear non-compliant. I can see that the promoters are accustomed to regional center EB-5, and have not thought through all the implications of a basic direct EB-5 difference: that the New Commercial Enterprise and the Job-Creating Entity must be formally one and the same, meaning that all NCE requirements also apply to the JCE and vice versa. This well-known structural fact has a cascade of less-obvious practical consequences for direct as opposed to regional center EB-5, including differences with respect to preexisting business investment, investment terms, investment structure, investor role, investor source of funds, timing considerations, and exit options. (See my Direct EB-5 page for discussion and examples.)

Direct EB-5 is personal for me because I have written over a hundred direct EB-5 business plans – many of them in 2015-2017 during the surge of direct EB-5 demand that occurred around the last cliff-hanger regional center program sunset date in 2015. Every plan meant a business and entrepreneurs that I got to know, and it’s been satisfying and sometimes painful to follow their stories. I’ve had years now to watch outcomes unfold, in USCIS review and in business development. There have been successes I’d love to see again, and tears that I’d like to help avoid going forward. Everyone attempting direct EB-5, take time to educate yourselves. Work with people who have walked a distance on the direct EB-5 path, and learned the hard lessons of practical experience.

I’ll end with a chart that illustrates how the direct EB-5 opportunity has been used over the years, according to numbers of EB-5 visas issued. Note that direct EB-5 accounted for a majority of EB-5 visas until the regional center opportunity gained popularity following the financial crisis in 2008. Direct EB-5 got another boost around 2015, when the fight over regional center program authorization legislation encouraged people toward the relative stability of direct EB-5. That boost was gradually depressed by long processing times and practical challenges that particularly impact direct EB-5, combined with a complacency around short-term regional center program extensions. Direct EB-5 demand may revive again now in 2021, as the regional center program fights for authorization, and direct investors may be able to skip ahead in waiting lines and take advantage of a temporary window for reduced investment amounts. Note that direct EB-5 investors have historically been more tolerant of higher investment levels than regional center investors. A significant percentage of direct EB-5 visas to date were based on investments at the $1 million dollar level, even twenty years ago.

 

Policy Updates, Webinars

USCIS Updates Policies to Improve Immigration Services

Today USCIS announced policy updates “to clarify the criteria and circumstances for expedited processing; improve request for evidence (RFE) and notice of intent to deny (NOID) guidance; and increase the validity period for initial and renewal employment authorization documents (EADs) for certain noncitizens with pending adjustment of status applications.”

These actions are part of a series of planned improvements designed to modernize USCIS and “to eliminate policies that fail to promote access to the legal immigration system.” The USCIS press release quotes Acting USCIS Director Tracy Renaud: “USCIS is committed to promoting policies and procedures that ensure we operate in a fair, efficient, and humane manner that reflects America’s heritage as a land of opportunity for those who seek it.”

Yay! Looking forward to several more years of improvements like this!

AIIA Webinar Invitation

In debates over regional center program reauthorization, EB-5 legislation, and USCIS processing, EB-5 investors have had little voice and influence. A few investors are trying to change that, and have formed American Immigrant Investor Alliance, a non-profit organization with plans for investor-focused advocacy and community development activities. “AIIA hopes to provide investors a seat at the table with respect to the decisions that directly affect them. As investors, we believe our stories and our investments are the best representatives of the good that the EB-5 program brings to the United States.” Interested in this effort? The organizers are hosting an introductory webinar on Saturday, June 12 at 8 am PDT/11 am EDT to discuss goals and plans and invite participation. UPDATE: A recording of this excellent webinar is now available on YouTube.

Behring Companies Webinar Recording

On June 7, Behring Companies hosted a webinar covering topics including the Behring V Wolf et. al. lawsuit on the EB-5 regulations (including goals, arguments, and potential outcomes), EB-5 program reauthorization efforts, and reform priorities from a holistic perspective. Register to view the recording.

Know of other EB-5 advocacy events and activities that should be mentioned? Email me at suzanne@lucidtext.com

EB-5 news (USCIS public input request, reauthorization, RFE response and litigation, NVC update, PT report update)

Request for Public Input

Today DHS published Request for Public Input: Identifying Barriers Across USCIS Benefits and Services. This request aims “to better understand and identify administrative barriers and burdens (including paperwork requirements, waiting time, and other obstacles) that impair the functions of the USCIS process and unnecessarily impede access to USCIS immigration benefits.” Thank you Secretary Mayorkas! Yes, we have input for you.  

Click on the above link for instructions for how to submit effective comments. Note that the comment due date – originally written in error as today – has been updated to May 19, 2021. If anyone would like to hire me for EB-5-specific comment writing service, I am available and bring a successful track record. The Final Rules on the EB-5 Modernization Regulation and the 2019 USCIS Fee Rule both quote extensively from comments that I submitted on the proposed rules. My strategy is to be rigorous and draw on my massive repository of data and citations.

Reauthorization

The best news I have on the push for regional center program authorization is that EB-5 giant Robert Divine has published an article in EB5 Investors Magazine: “The problem with EB-5’s reliance on temporary legislation.”  In just 600 unminced words, Mr. Divine explains the reauthorization situation and what’s at stake for investors, industry, and the country. If I were writing to my representative to press for reauthorization, I would attach Mr. Divine’s article as clear, honest, and authoritative background reference. If I shared anything on social media, I’d share this article as a call to action. And I’d like to give a standing ovation to this conclusion from the article:

Congress should at least provide that the regional center legislation in effect at the time an investor files Form I-526 will remain in place throughout those waits until the investor can remove conditions on permanent residence through adjudication of Form I-829. The United States is a country of laws designed to protect reasonable expectations. This nation should not be encouraging people to invest to create jobs for us without protecting the reasonable expectations of investors who take the risk of such investment.

I continue to update my Reauthorization page as I hear of news and resources. Most recently, I noted that the text of S.831 has finally been published at Congress.gov.

RFEs and Litigation

The April 2021 edition of EB5 Investors Magazine is generally rich in helpful articles. I particularly note my article, and multiple articles on recent trends in EB-5 litigation.

Consular Processing and Visa Updates

The Visa News page on the Department of State website includes several significant updates.

  • Apr 6, 2021 Visa Services Operating Status Update This post confirms that as of April 2021, EB-5 is still not a priority for interview scheduling. “Posts that process immigrant visa applications are prioritizing Immediate Relative family members of U.S. citizens, including intercountry adoptions, fiancé(e)s of U.S. citizens, and certain Special Immigrant Visa applications.”
  • Apr 9, 2021 National Visa Center Meeting with AILA on February 17,2021 This meeting transcript from February is full of interesting information. Including:
    • “During CY 2020, the median time for an approved I-526 petition to reach NVC from USCIS was 126 days…. NVC does not have a way to proactively search USCIS systems for approved I-526 petitions that have not been electronically transferred to NVC.” (DOS here quantifies the problem of delays by USCIS in forwarding I-526 approvals to NVC, and suggests there’s not much DOS can do about the problem.)
    • “As of January 25, 2021, NVC’s queue of documentarily complete employment-based or family-sponsored cases (including family preference and immediate relative cases), with a visa number available, waiting for an immigrant visa interview is: Family-Sponsored: 312,782 cases; Employment: 11,504 cases; EB-5: 3,930 cases.” (That huge family-based number is alarming, because family cases are getting priority over employment cases as noted above. The EB-5 number is interesting, because it tells us how many consular cases are ready to go based on how far the visa bulletin has already moved. The total number of EB-5 cases registered on the immigrant waiting list at NVC, which includes those without visas available yet per the visa bulletin, is much higher of course.)

See also “Briefing with Consular Affairs Acting Deputy Assistant Secretary for Visa Services Julie M. Stufft on the Current Status of Immigrant Visa Processing at Embassies and Consulates” from March 1, 2021

The May 2021 visa bulletin has announced another “Chats with Charlie” to take place on April 22, 2021 at 1:00 p.m. EST at https://www.youtube.com/user/TravelGov Questions can be emailed to VisaBulletin@state.gov ahead of the event with “Chat with Charlie Question” in the subject line. The previous visa bulletin live chat from March 17 was incredibly helpful and informative, and I’m looking forward to the April iteration.

Processing Time Report Update

The USCIS website has long had a page titled “Historical Average Processing Times” that I used to ignore because it reported a meaningless and misleading data point. Instead of reporting processing times, this “processing times” page used to report “average age of all petitions currently pending.” Average inventory age combines processed and unprocessed petitions, naturally falls with an influx of new receipts, and does not directly reflect on processing times. This misleading page was probably heavily referenced by people filing Mandamus complaints, because average inventory age is often less than processing times. And now, USCIS has finally gotten around to fixing the page. 

Since March 31, 2021, the Historical Average page is now titled “Historical National Median Processing Time (in Months) for All USCIS Offices for Select Forms By Fiscal Year,” and uses a revised method. Instead of reporting average inventory age, the page now reports median age specifically of processed forms, consistent with the method used for the Case Processing Times page.  “Processing times are defined as the number of months it took for an application, petition, or request to be processed from receipt to completion in a given time period. …The number of months presented is the median. It represents the time it took to complete 50% of the cases in a given time period.” This page provides median times across a full year, which are interesting when compared with median times reported monthly for those same years (as recorded in my on-going log). For example, the Historical Average page now reports a median I-526 processing time of 19 months across FY2019 adjudications, while monthly I-526 processing time reports from October 2018 to September 2019 indicated median times ranging from 20 to 27.5 months – never as low as 19 months. Hmmmmm….. After all, the revised Historical Average page continues to provide ammunition for Mandamus lawyers seeking to show that the monthly USCIS processing times reports are misleading. The annual averages also starkly illustrate that the I-526 visa availability approach, instituted in 2020, did not bring down the average age of adjudicated cases as intended by USCIS.

Historical National Median Processing Time (in Months) for All USCIS Offices for Select Forms By Fiscal Year: Fiscal Year 2017 to 2021 (up to March 31, 2021)

FormFY 2017FY 2018FY 2019FY 2020FY2021 to March 31
I-52616.617.91931.231.2
I-82918.221.825.924.833.7
I-92419.51918.819.134.8
I-485 (all employment-based)710.6108.811.5
summarized from https://egov.uscis.gov/processing-times/historic-pt as of April 19, 2021

Sharing I-526 Experience

The most compelling processing time evidence comes from individual experience. I appreciate EB-5 investors who share their experience and case status analysis in blog post comments. And I appreciate the suggestion for a single static place to collect these reports for common reference. I’ve made failed attempts at this in the past (including starting a forum that I didn’t have time to moderate, and setting up a Google form whose link no one can ever find). But I will continue to think how I can best facilitate info sharing. FYI, from my various information sources, November 2018 continues to be the filing date I most commonly see on I-526 decisions.

Ombudsman Meeting Input

2/2 Ombudsman Meeting

IIUSA has announced that its staff have been invited to a virtual meeting on February 2 with representatives from the Office of the Citizenship & Immigration Services (CIS) Ombudsman.

Ombudsman’s Office meets with stakeholder communities to hear about their concerns and identify issues with USCIS programs and processing. The Ombudsman then uses this input to make recommendations to USCIS to fix systemic problems and improve the quality of their services.

In preparation for this meeting, IIUSA is collecting comments and feedback on areas of concern that industry would like to be addressed at the upcoming meeting. You can send your comments to info@iiusa.org no later than Wednesday, January 20.  (Note that the CIS Ombudsman deals with USCIS specifically, not with consulates/Department of State and not with legislation.)

I am still thinking about my comments and questions, and invite you to help me. The CIS Ombudsman is most likely to note and act on problems that are systemic and widespread. So the strongest comments will be able to reference the specific experience of multiple witness. I made a Google Form designed to collect such experience, and I invite you to fill out the form with your input on processing issues encountered for I-526, I-485, I-829, etc.. This will save me the time of sorting through old blog comments to collect details from reader experience, and will help to shape and inform my thinking. (And of course, you can respond directly to IIUSA as well.) [Note: the form is now closed. Thank you to the 40 readers who submitted input. I summarized and used detail from your comments to craft the suggested questions I sent to IIUSA.]

Other Updates

Recent announcements on the USCIS News page may be relevant for some readers:

USCIS to Replace Sticker That Extends Validity of Green Cards (January 12, 2021)

USCIS Lockbox Updates (January 08, 2021) regarding delays in issuing receipt notices

USCIS Extends Flexibility for Responding to Agency Requests (December 18, 2020)

2/3 Government Affairs Webinar Invitation

IIUSA invites the public to join a free Government Affairs and Association Update on February 3, 2021. Promised topics include legislative updates, Grassley/Leahy integrity reform discussion, IIUSA USCIS Ombudsman Meeting recap, ongoing FOIA litigation, and how you can be an advocate. You can register here, and are invited to email questions in advance to info@iiusa.org. Thank you IIUSA! Take advantage of this opportunity, and convey your questions. My sacrifice before the camera this week was not in vain, I like to think, if it helped encourage this very welcome engagement. Those wondering about potential post-election changes may also appreciate Episode 18 of the KlaskoLaw podcast “2020 Post-Election Immigration Breakdown.”

As a reminder of where we’ve been, here’s the most recent update to my history of regional center program authorizations. The regional center program was established in 1992 and typically extended for several years at a time, until 2015. Since then, it’s been a bumpy ride thanks to the chaotic appropriations process, with funding bills and continuing resolutions extending government funding (and incidentally, associated immigration program authorizations) for a few months at a time. Now a new regional center program sunset date of June 30, 2021 separates the regional center program from the appropriations drama, and creates the challenge and opportunity of dealing individually with EB-5.

What would happen if Congress did not reauthorize the regional center program in time? The last time we seriously asked this question was back in 2012, when we were coming off a three-year authorization and depending on Congress for another long-term reauthorization. At a January 2012 stakeholder meeting, I noted this exchange: “A stakeholder asked what procedures might be employed in the event that Congress does not extend the EB-5 Regional Center program past its current sunset date of 09/30/2012. Rachel Ellis responded that this as a question that will just have to be addressed when and if it occurs, and that the Service does not have a response at this time.” After the May 1, 2012 stakeholder engagement, USCIS published a Q&A with a similarly vague answer to a question about how a regional center sunset might affect current and future applications and projects. “If Congress does not reauthorize the Immigrant Investor Pilot Program, all existing regional center designations will expire automatically. Following the sunset of the Immigrant Investor Pilot Program, USCIS will no longer possess authority to approve a regional center designation. USCIS will continue to monitor Congressional actions pertaining to the EB-5 Immigrant Investor program, and will keep stakeholders informed as new information becomes available.” I think the bottom line is that there’s no developed policy for a sunset because it’s just not possible to contemplate that a multi-billion dollar program would get abruptly terminated mid-stride with those billions of dollars and over 80,000 pre-CPR investors in the balance. Certainly regional centers and their lobbyists are motivated to do what it takes to avoid that eventuality, and politicians who like jobs and investment should be too. I could imagine a temporary lapse in authorization thanks to Congressional inefficiency, which would presumably play out like the temporary authorization lapses we’ve seen in connection with government shutdowns. Scroll to the bottom of my Washington Updates page to see further discussion. The regional center program strongly needs the stability of long-term if not permanent authorization, and has proven its value for economic development and job creation. I look forward to seeing long-term authorization accomplished this year.

I’m reminded of this EB-5 Legislation? post I wrote just over a year ago, reviewing what happened with EB-5 legislation between 2015 and 2019. The dynamics described in that post are still presumably at play as we look at a renewed legislative effort in 2021. But now a near-term deadline gives extra pressure and encouragement to actually cross the finish line.


EB-5 Outlook 2021: questions about legislation and reauthorization

2/17/2021 Update: Please visit my new Reauthorization Page, which collects resources that answer many of my questions below.

— Original Post —

On Wednesday January 6 at 2 pm EST, Carolyn Lee is hosting an EB-5 Outlook 2021 Webinar (register here) with guests Bill Gresser, Adam Greene, and me. Carolyn is Legislative Counsel to IIUSA, a 4-term Chair of the American Immigration Lawyers national EB-5 Committee, and industry godmother. Bill is Vice-Chair of IIUSA’s Board of Directors, and both Bill and Adam are former chairs of IIUSA’s Public Policy Committee and industry leaders. [1/5 update: Bill Gresser and Adam Greene no longer plan to join the webinar.] I am famous for asking questions.

This webinar aims to start 2021 right, with dialogue. I look forward to hearing perspectives, and to raising questions. So far I’ve prepared a list of questions regarding prospects for EB-5 legislation and regional center program authorization before the new sunset date of June 30, 2021. Of course a small panel speaking informally can’t possibly answer all these big questions, but any discussion is a good start. I hope that the discussion will grow, and that IIUSA/the industry will eventually speak to questions like these. (I may also volunteer my labor to ask questions on a larger scale — currently contemplating a conducting a survey to assess the range of regional center interests and concerns with respect to legislation and specific Grassley/Leahy proposals. Regional centers, contact me if you’d like to see this and have suggestions.) Meanwhile, feel free to add your questions re 2021 outlook to the comments on this post.

Suzanne’s questions regarding 2021 outlook for EB-5 legislation and regional center program authorization

  1. Legislative activity coming soon…
    • Is there any chance of a “clean” regional center program extension beyond June 30, 2021, or will regional center program reauthorization certainly come with significant program changes?
    • Do you expect to see Grassley and Leahy reintroduce their EB-5 Reform and Integrity Act promptly in 2021?
    • Is it possible/probable that anyone else in the House or Senate might introduce EB-5 legislation shortly? If so, would such alternative legislation have a chance to proceed?
    • How much attention is EB-5 likely to get between now and June? Do you expect things like committee hearings and significant discussion around stand-alone EB-5 legislation, or is it more likely that RC program authorization would get tacked on to some other more important legislation? (And if so, what might that be?)
  2. Regarding the Grassley/Leahy EB-5 Reform and Integrity Act…
    • What are the major concerns/barriers in Congress for the Grassley/Leahy bill?
    • What are the major questions/concerns in the industry for the Grassley/Leahy bill?
    • What has been done/will be done to identify and address those questions, concerns, and barriers?
    • To what extent is the Grassley/Leahy bill still open to negotiation?
    • If you think the Grassley/Leahy bill as-is represents the best possible option for regional center program authorization, what’s the reason for thinking that?
  3. Interests and goals…
    • What are Grassley/Leahy trying to accomplish with the bill? Whom are they trying to benefit?
    • What have industry negotiators been trying to accomplish with legislation? For what priorities have they been advocating?
    • Is there any hope/plan/timeline to realize these items not in the Grassley/Leahy bill: More visas for EB-5; More marketable EB-5 investment amount/TEA definition
  4. Options for participation, collaboration, and engagement…
    • How can a concerned regional center get a hearing for their input to EB-5 legislation?
    • Any options for concerned investors to assist or influence the process?
    • What can IIUSA do to identify and address concerns, and broaden involvement in and support for EB-5 legislation?
    • What needs to happen in the next few months to ensure that the regional center program gets extended?
  5. Outlook for reauthorization…
    • Do you see any chance of the regional center program being allowed to sunset? If that happened, what would be the likely reason?
    • Do you see any chance of regional center program authorization being allowed to lapse for a time? If that happened, what would be the likely reason?
    • EB-5 legislation has been actively discussed since 2015, but not passed. What reason is there to hope for a result in the next six months?
    • As people involved in the process, what lessons have you learned from past legislative efforts that you intend to apply going forward?

Report on Nov 2020 IPO Non-Engagement

This week, the USCIS Investor Program Office used three venues to dismay the public with a disingenuous presentation of ostensible EB-5 program updates. You can find this non-engagement posted in PDF form in the USCIS Electronic Reading Room, recorded on Youtube, and as a presentation by IPO Chief Sarah Kendall to IIUSA. (The three are essentially identical.)

I learned a few things from the presentation.

To start with the positive, IPO says that they recognize and are actively working to fix two problems: the issue that family members have been scheduled on different days for I-829 biometrics (a system glitch), and the issue of delay in sending approved I-526 to the National Visa Center (a temporary staffing issue).

The most negative update: not a word in answer to many urgent clarification questions about redeployment; only insulting parroting of previously-published language with no acknowledgement of industry feedback.

IPO’s dedicated staff is currently at 232 people – down but not much from the last-reported level of 245 people as of March 2020. I’m happy to hear that the furlough threat between March and August didn’t result in more attrition. Almost 100% of staff have been working from home since March.

IPO indirectly responded to the question of whether the process for assigning I-526 is first-in-first-out, for petitions with visas available. In the presentation and also an additional Q&A on the Visa Availability Approach FAQ page, IPO highlights project review as a second factor in determining I-526 processing order.  “IPO manages Form I-526 petition inventory through workflows factoring in whether: (1) A visa is available (or will be available soon); and (2) The underlying project has been reviewed. Workflows are generally managed in FIFO order when a visa is available or will be available soon.” This helps to explain what we see anecdotally – that I-526 are not necessarily assigned in filing date order even for people with identical visa availability circumstances. Petitioners associated with projects already reviewed in previous petitions can apparently expect swifter attention than those who invested in novel projects — creating an asymmetry that’s understandably practical but with negative results from a public policy and integrity perspective.

I-526 and I-829 productivity have not continued to improve. From March 2020 to August 2020, the presentation says that IPO averaged 304 I-526 completions per month and 265 I-829 completions per month. That’s no improvement on January to March 2020, and still three to four times lower than the IPO’s productivity in 2017 and 2018, before Sarah Kendall took over as Chief at IPO.  (See the table at the base of this post for detailed reference.) Most disheartening: Kendall did not regret the dismal productivity over the past few months or foresee future improvement, but actually boasted about the numbers up to August 2020 by comparing them favorably to her own worst record in mid 2019. There were 16,633 pending I-526 at last report. If the current abysmally low productivity continues, an average I-526 filed today won’t even get looked at until 16,633/304=55 months from now. (The visa availability approach offers a time discount for I-526 from low-volume countries, but at such low productivity even they would wait three years for attention, according to per-country data, while high volume countries would be looking at well over five years unless IPO performance improves.)

“What are you doing to ensure program integrity today, USCIS?” The answer: “Sorry we can’t know what’s going on with EB-5 investment today because due to our low productivity we’re nowhere near being able to examine new files – and at our current rate we won’t even look at investments happening now and petitions being filed today for another three to five or more years in the future.” That answer should make Congress very angry. It certainly angers and frustrates the industry, as we try our best to maintain integrity even as USCIS won’t examine or let us know what’s going on. Until USCIS improves productivity, it’s basically saying “Welcome wannabe fraudsters, come over to EB-5 where we’ll offer you many years to operate in the dark while we waste resources implementing a time-is-no-object process on old petitions, actively discouraging new honest use of the program.”  And still Kendall dares to claim that there’s integrity in using an office of 232 people to implement a new process so slow that it can only process about 570 investor petitions per month – less than 3 per IPO employee – while large backlogs wait unexamined. Biden administration, note that the USCIS Investor Program Office needs changes, and quickly. As recently as 2018, before Sarah Kendall took over, IPO was more than three times more productive with fewer people. We need that performance back as soon as possible.

Overall, IPO’s presentation is a masterclass in non-engagement. The playbook:

  • Ignore questions. (Among the ignored questions, see this list from IIUSA, most of which I wasted my time writing. USCIS particularly went out of its way to avoid answering questions about policy manual feedback, redeployment policy changes, source and path of funds policy changes, and I-526 data by country.)
  • In the guise of answering questions, reiterate word for word what the public already knows from information previously published. (This method was used to not answer our clarification questions about processing times, the visa availability approach, and redeployment policy updates, and to provide non-information about Form I-924A.)
  • Allow no interaction whatsoever. While Sarah Kendall did at least appear live at the IIUSA meeting, it was only to read aloud her talking points from the PDF and Youtube Video – no questions or comments were allowed. “Public engagement” used to mean that USCIS would have a quarterly call or meeting to talk to and listen to stakeholders; now all we can do is listen to a YouTube video and give it a thumbs down, or take the public engagement survey to indicate that we are very dissatisfied. (At least do this, everyone, for what good it does.) IPO is showing simply zero good faith or willingness to take stakeholders as partners.

Sarah Kendall said that “Program integrity is at the forefront of everything we do. IPO is continually fielding questions from Congress and others on performance in this area.” I choked. As someone who actually does care about and stand for program integrity, I wish I could field questions about IPO’s performance.  Congress and others: contact me. Senator Grassley’s office: I understand your concerns and would love to tell you true stories that USCIS and the lobbyists won’t tell you. David North, I’d even be happy to chat with you.  I can provide detail and evidence regarding specific IPO practices and policies that have – by malice and/or simple stupidity — gutted EB-5 program credibility, invited abuse, and undercut every Congressional objective for EB-5, from job creation impact to promotion of economic growth in rural and distressed areas. (In these efforts the lobbyist side has a culpable role as well, but that’s a conversation for another day. If only the majority of EB-5 users had any voice at all in the industry!)

As USCIS acknowledges in the presentation: “we have seen that the vast majority of petitions and regional centers are engaged in legitimate business activities and endeavor to strengthen U.S. communities by creating jobs.” The same cannot be said of IPO under current leadership. If you’re part of the new administration, and motivated to heal our legal immigration system from the recent efforts to savage it, the Investor Program Office at USCIS needs your urgent and early attention.  EB-5 can and should be a credible and effective tool for economic growth, job creation, and immigration by people who immediately benefit the United States. For that to happen, the program needs competent and responsible new management. (And indeed, this need applies to USCIS as a whole.) [12/2020 update: Sarah Kendall has left IPO, replaced for now by someone named Todd Young serving as acting chief. Now I feel bad. In Ms. Kendall’s defense, she probably did exactly and simply what she was hired and directed to do at IPO.]

Calendar PeriodNumber of employees reported at IPOAverage I-526 processed per monthAverage I-829 processed per monthAverage total investor petitions processed per monthAverage employee productivity, in terms of petitions processed per month
2016110934951,0299
20171859852861,2717
20182001,2211931,4147
20192122131423552
2020 Jan-March2453012625632
2020 March-August2323042655692

What is normal I-829 processing?

The latest USCIS Check Case Processing Times page update gives the implausible report that Form I-829 is not considered “outside normal” processing unless it was filed almost 20 years ago, before May 2001. But not to fear — this does not mean that I-829 should take, will take, or have normally taken that long to process.

What does the report mean?

I have a theory that could explain the I-829 processing time update: maybe USCIS finally adjudicated a batch of I-829 petitions held limbo since 2002 over compliance with Public Law 107-273.  (A situation described at the end of the post, if you’re interested.) If that’s correct, then the report is good news. (And the only alternate explanation I can think of is that 234 months is simply a made-up number or a typo.)

Certainly, the page update does not mean that 36.5 to 234 months is now or ever has been a normal or expected range for I-829 processing.  In communication with stakeholders, USCIS treats the reported “estimated time range” as defining normal processing — but that application is simply mistaken, given the reporting methodology. As explained on the USCIS website, the processing time report Estimated Time Range uses a method where only the first month represents something like a normal processing — the median processing time of recently adjudicated cases — while the larger month represents the border of extreme outliers in recent adjudications. Unfortunately, the report uses that larger month to calculate the “case inquiry date.” This unreasonably prevents inquiries until a pending petition is older than 93% of cases recently processed — and creates unreasonable situations like the 20-year-old cutoff currently published for I-829.  A published “case inquiry date” in May 2001 is good news in the sense that it’s obviously ridiculous and discredits the way processing time report case inquiry dates are reported and used.

Alternate data for I-829 processing times

When the USCIS Check Processing Times Page is misleading, how else can we get a sense of normal and actual I-829 processing times? Available sources include sporadic reports of specific adjudications, I-829 volume trends, and the law.

In the USCIS FOIA reading room, there’s a file I-829 Approvals, Denials, and Receipts for Q1 of FY19 (PDF, 257.8 KB). The file lists the filing date and the approval or denial date for every Form I-829 adjudicated October 2018 to December 2018. I put the file in Excel and made a chart to show the pattern of actual processing times in this quarter for which we happen to have have complete data. As illustrated in the chart, the majority of decisions (79%) came in under 30 months. (Specifically 18-30 months: a wider ranger than one would expect from a nominally FIFO process.) And then there was a very long skinny tail of outliers.

Meanwhile, back around December 2018, the USCIS Check Case Processing Times page was reporting an I-829 estimated time range of 30 to 39 months (as recorded in my on-going log of processing time reports).  Most people looking at that report in 2018 would not have interpreted the reality: that 79% of I-829 being processed had waited less than 30 months. The report was misleading, even if it may have been technically accurate in reflecting the median and 93rd percentile of recent adjudications.

If most I-829 petitions adjudicated at the end of 2018 had a processing time between 18 and 30 months, what can we guess about I-829 adjudications today? Actual processing times today should be shorter or longer than that depending on how much productivity has increased or decreased since then. (Receipt volume should not vary the workload much, since the annual quota for CPR visas naturally paces demand for PR.) The following chart illustrates I-829 filing and productivity data reports from the USCIS Citizenship & Immigration Data page.

Productivity (approvals+denials per quarter) leading up to December 2018 was a bit higher overall than productivity since then, which would naturally mean that people getting I-829 decisions today probably waited longer than people getting decisions in December 2018. But future I-829 processing times promise to be shorter, if the productivity improvement evident early this year turns into a continuing trend.

The Law

In assessing what’s “normal” for I-829 processing, we needn’t just consider reported times, or actual times in recent experience. The fact that 1.5-to-3-year times are typical doesn’t make them normal. To quote from the 2020 Final Fee Rule: “DHS acknowledges its obligation to adjudicate Form I-829 filings within 90 days of the filing date or interview, whichever is later. See INA section 216(c)(3)(A)(ii), 8 U.S.C. 1186b (c)(3)(A)(ii).”

The Public Law 107-273 Saga

The “234 months” in the current I-829 processing time report could only be true by its methodology if indeed 7% of I-829 recently processed were more than 234 months old. Is that even possible? Reaching into my memory, I realize that yes, I do know of one multi-decade delay factor affecting a few cases. Here’s what happened.

  • In 1995 to 1998, a number of EB-5 investors received I-526 approval for deals that the immigration service would later judge to be problematic.
  • In 1998, the Immigration and Naturalization Service (INS), the predecessor agency to USCIS, issued four precedent decisions addressing the eligibility requirements for EB-5 petitions. The publication of these precedent decisions resulted in litigation over their applicability to cases at various stages of adjudication.
  • In 2002, Congress passed Public Law 107-273 with language to resolve the situation for EB-5 investors who had petitions pending when the 1998 precedent decisions changed the rules. P.L. 107-273 offered options for these immigrants to perfect their investments in order to remove conditions on permanent residence. P.L. 107-273 specified that the immigration service must publish implementing regulations in 120 days (hahahahaha), and could not take adverse action on I-829 for those immigrants until implementing regulations were effective.
  • Twice a year from 2003 to 2010, the OMB Unified Agency announced the immigration service’s intent to finalize/propose regulations soon. Nothing was published or finalized. The pending I-829 for petitioners affected by PL 107-273 stayed pending for nearly a decade.
  • In 2010 at an EB-5 stakeholder meeting, USCIS announced that those PL 107-273 I-829 petitions were finally getting attention. USCIS said that they had just reviewed and approved some of the I-829, and had 581 affected I-829 left that would be held in abeyance pending finalized regulations.
  • 2011: A Proposed rule was finally published in the Federal Register for “Treatment of Aliens Whose Employment Creation Immigrant (EB-5) Petitions Were Approved After January 1, 1995 and Before August 31, 1998.” The public commented.
  • 2011-2019: Almost another decade passed, and the proposed regulations were not finalized.
  • October 2020: An I-829 processing times report suggests that USCIS recently processed a batch of I-829 about two decades old. I hope this means PL 107-273 closure at last. Also, that USCIS will take a lesson from this story: avoid retroactive rule-changes!

Assessing EB-5 TEA Qualification (online tools)

How can we tell whether an area qualifies as a Targeted Employment Area for EB-5, now that states no longer issue TEA designation letters?

Letters are a handy form of evidence, better than printing out thousand-row spreadsheets, so most Form I-526 will still be accompanied by a letter that presents data and explains TEA qualification. The project company, regional center, or lawyer can hire a private expert to write the letter. But naturally, the analysis won’t look as automatically authoritative as a letter signed by a state labor department. So how can we still feel confident about TEA analysis? With TEA qualification making the difference between a $900,000 investment and a $1.8 million investment, we want to be sure on this point.

Thankfully, new online tools have helped to add convenience and transparency to the TEA process. The websites for the U.S. Census Bureau and Bureau of Labor Statistics are quite difficult for laymen to navigate, but three EB-5 industry sources have compiled relevant Census and BLS data in online TEA tools. I can recommend the following, having tested each (and if you know of any others, send me a link and I’ll try them out too): IIUSA TEA ToolImpact DataSource TEA ToolEB5 Affiliate Network TEA Tool.

The TEA tools are set up so that you enter an address, and the tool will tell you whether and how that address can qualify as a TEA. The tools use the same data options and methods consistent with USCIS guidance, while differing in which types of TEA geographies they particularly highlight or facilitate checking.

As a reminder, a given address may qualify as a TEA with respect to its location in the following geographies: single census tract, census tract group, MSA, county that is within an MSA or contains a city/town with population over 20,000, city/town with population over 20,00 which is outside an MSA, or rural area outside an MSA and not in the outer boundary of a city/town with population over 20,000. (Census tract group is the most common type of TEA.) In addition to geography options, TEA designation offers data options (with data available from the Bureau of Labor Statistics and/or U.S. Census Bureau explicitly sanctioned by USCIS as reasonable). If a given address qualifies as a TEA at multiple geographic levels and with multiple data options, so much the better.

I’d go to the IIUSA tool first if I wanted to scan a map looking for obvious TEA areas, or if I were interested in any geography option besides census tract group. I’d go to the IDS or EB5AN tools first if I expected a location to qualify as part of a census tract group. Both the IDS and EB5AN tools automatically identify which contiguous census tracts will optimize the TEA opportunity within USCIS policy restrictions. The IDS tool is unique in offering an additional trend feature that uses the latest monthly BLS data to help foresee future TEA changes – which will be significant in 2021, considering the crazy employment year in 2020. The EB5AN tool has the advantage of integrated map with census tract overlay, and the option of downloading a free template TEA letter.

I think it’s easy and good practice to just check all three tools when examining a particular location, though each should offer the same conclusions. That way if one company or organization eventually neglects to update data on time or makes some other slip, the difference from another tool will flag the issue and help prevent mistakes. And then, having used the online tools as a research reference, you can pay a qualified consultant to actually write up a TEA analysis letter, present the data, and remind you about the TEA qualification issues besides data and geography (TEA timing, and where jobs are located).

TEA Tool Comparison

Tool IIUSA TEA Tool
 
Impact DataSource TEA Tool EB5 Affiliate Network TEA Tool
Source Industry trade association Economist service provider Regional center operator
Advantages / Distinctive Features Best if you want to scan a map to visually identify rural areas and single census tract TEAs.
Only tool that reports county, MSA, and city-level data as well as census tract data.
Map portion of the tool functions most smoothly.
Good for identifying census tract group TEAs.
Best for predicting future TEA changes, as it separately reports and illustrates the latest monthly unemployment data trends.
Facilitates creating your own census tract groups.
Includes MSA TEAs.
Good for identifying census tract group TEAs.
Only option that offers to automatically generate a free TEA letter.
Census tract grouping tool is integrated with the map.
More detail than IDS (but less than IIUSA) for county and rural TEA.
Comparative Disadvantages Does not identify or automatically calculate census tract group TEAs (though it provides data that allow doing this oneself). The map integrated with the tool is not visually helpful – no overlay of census tract or other boundaries.
While correctly assessing TEA qualification at the county, MSA, and rural level, does not show the data used to make those determinations.
Intrusive advertising.
Map portion does not work as smoothly as IIUSA’s. Can have technical glitches if checking multiple addresses.
Rounding data to two decimal places maximizes opportunity for marginal TEAs (strength and weakness).
Does not flag MSA TEA.

As an illustration, a few screen shots of the various options for checking how my office location may qualify as a TEA.

Index to May 2019 EB-5 adjudicator training materials

In May 2019, the Investor Program Office held an I-526 “reset training” for adjudicators. I now know some of the content of that training, thanks to a Freedom of Information Act request (followed up by a lawsuit, because USCIS apparently didn’t want to release the materials). IIUSA has been promised 2,000 pages from its FOIA request, and has so far received about 500 pages.

IIUSA has chosen not to make the adjudicator training materials publicly available. The materials are available as a member benefit in the IIUSA Member Portal, accessible through this link.

For reference, I created a Table of Contents to the May 2019 training materials, copied below. This index can assist navigation for those able to access the file, and also highlights points of particular interest.

When I read adjudicator training materials, I look for guidance, interpretations, and examples that do not exist elsewhere. Much of the content is familiar – just the existing  published policy, regulations, and precedent decisions summarized in bullet point format on slides. But here and there, we find USCIS training adjudicators with guidelines and interpretations that they neglected to ever tell us, the public who’s trying to follow the rules. We who prepare documents for adjudicators to review particularly need to understand the standards and mindset that will be applied to those documents.

I also read between the lines of adjudicator training, attending to emphasis, angles, and omissions. I’ve studied every EB-5 adjudicator training since 2008, so I’m placed to notice how the training has shifted over time. (For those interested in the historical view, here are my articles on previous trainings: USCIS EB-5 Training Materials 2008 to 2011 published in the IIUSA 2013 Forum Handbook, 2014 USCIS EB-5 Adjudicator Training Materials published in the Regional Center Business Journal Vol. 2, Issue 4, December 2014, 2015 EB-5 Training Materials published on this blog in February 2017.)

What’s new in the May 2019 I-526 training materials provided so far? I particularly noted new content on economic impact analysis, TEA analysis, escrow arrangements, minor investors, path of funds, non-EB-5-investors, and capital at risk, and new perspectives on deference and material change. Future articles may address these points in detail.

Index to Immigrant Investor Program Office Training May 8, 2019

Page Section  Notes
1-5 Exercise prompts I-526 Exercise I has students practice when to not grant deference to prior I-526 and I-924 approvals

I-526 Exercise II has students practice denying for material change

I-526 Exercise III has students practice RFE/NOID over source and path of funds

I-924 Exercise focuses on what requirements apply to an Exemplar filing with no actual I-526 yet

6-40 Establishment of the New Commercial Enterprise Reviews the existing regulations and policy for an NCE

p. 28 clarifies that the investor could deposit directly into wholly-owned subsidiary’s account

p. 29 states that “It is the job creating business being undertaken by the NCE that must be examined in determining whether the NCE creation requirements found at 8 CFR 204.6(h) are met, not the NCE entity itself.” The training forgets Wei Gan v. USCIS, a 2016 decision that found based on Matter of Izummi that the founding date of the NCE, not the JCE, is the relevant date in the regional center context. (MAY182017_01B7203)

p. 31-35 have exercises with examples of what is(n’t) restructuring and reorganization, and wholly owned subsidiaries

41-67 Regional Centers and I-924 Adjudications Reviews the existing regulations, policy, and form instructions for regional center designation and amendments

 

67-109 Introduction to Job Creation in EB-5 Adjudications Reviews the existing regulations and policy with respect to job creation

p. 80 references 2009 Neufeld memos regarding economically direct construction jobs

p. 82-85 explain how the terms “direct jobs” and “indirect jobs” have different meanings in the legal and economic model contexts

p. 93 has a new section on Bridge Financing and what it means “to have a “nexus” between the investment and the employment creation,” as required. Students are taught to assess evidence that the bridge qualifies as short-term and temporary, and that there was contemplation of being replaced by more permanent long-term financing. Slide 97 gives a practical list of “factors typically present in bridge financing.”

110-134 Comprehensive Business Plan: Job Creation in EB-5 Adjudications Reviews Matter of Ho and the existing regulations and policy with respect to business plans

p. 123-125 provides a new list of “common supporting documents” for the business plan (market analysis, feasibility study, appraisal report, pro forma, biographical statements, staffing information, project status and milestones)

p. 125 lists out suggested “Open source information to verify the credibility of the business plan. i.e., property records, state business entity records, business license records, civil litigation records, google map, etc .”

p. 126-130 lists “questions for officers to ask” but all are redacted.

135-184 Regional Center and Indirect Job Creation p. 135-153 explain how the terms “direct jobs” and “indirect jobs” have different meanings in the legal and economic model contexts

p. 146 “Although USCIS may request additional evidence that the indirect jobs created, or to be created, are full time, in general, USCIS relies upon the reasonable economic models to determine that it is more likely than not that the indirect jobs are created and will not request additional evidence to validate the job creation estimates in the economic models to prove by a greater level of certainty that the indirect jobs created, or to be created, are full-time or permanent.”

 

p. 154-161 explain economic models and multipliers and how they work

p. 162 and 167 discuss how to select the appropriate geography for Type II multipliers

p.  163-180 discuss how to analyze an economic impact report to determine its reasonableness: is the geography appropriate, the inputs reasonable and eligible, the multipliers most recent, industry codes correct, math correct, model reasonable and used correctly (deflation adjustment), documents consistent

p. 166 To validate inputs to the economic model: “Relevant documentation may include receipts and other financial records for expenditures that have

occurred and a detailed projection of sales, costs, and income projections such as a pro-forma cash flow statement associated with the business plan for expenditures that will occur.”

p. 173 Cites a list of eligible inputs to 6/4/2015 stakeholder meeting, referred to as a “memorandum addressing accepted costs”

p. 180 compares common economic models

186-199 Troubled Business: Job Creation in EB-5 Adjudications Reviews the existing regulations and policy with respect to troubled businesses

 

200-218 Material Change in EB-5 Adjudications Reviews the existing regulations, policy, and precedent decisions with respect to troubled businesses

Emphasizes the difference between Stage I amendments (change) vs Stage II amendments (change to correct a deficiency) referencing Izummi

p. 211-212 asks without answering a series of questions about whether various types of location change are material

p. 213 “Material changes allowed for a I-526 exemplar are not allowable for a I-526.”

p. 214 “In correspondence, officers must tie the material change to one or more eligibility grounds”

219-238 Deference in EB-5 Adjudications Reviews the existing policy with respect to deference

p. 227-234 give specific examples of exceptions to deference

p. 227 “Absent a material change in facts, fraud, or willful misrepresentation, officers should not re-adjudicate prior agency determinations that are subjective, such as whether the business plan is comprehensive and credible or whether an economic methodology estimating job creation is reasonable.”

p. 230 states a principle “Deference is given to the previous favorable decision, not to documents”  “A document that supports a determination of eligibility for one application or petition at one point in time may not support a determination of eligibility for another application or petition at another point in time.” Reasons include documents becoming outdated.

239-255 Adjudication Worksheets and Instructional Guides Overview This presentation reveals that all previous adjudication worksheets have been discontinued and replaced by:

·        Form I-924 Amendment Worksheet

·        Form I-526 Worksheet

·        EB-5 Project Review Worksheet

·        Form I-526 Deference Worksheet

The worksheets are accompanied by instructional guides (the FOIA request response does not include the worksheets or guides)

The worksheets are to be used in combination: for example for a regional center I-526, the adjudicator first uses the deference worksheet to make a decision on deference, then the Form I-526 and EB-5 Project Review worksheets to make a decision whether to approve. (For pooled stand-alone adjudications, the deference step is omitted for some reason.)

256-326 Targeted Employment Area (TEA) Summarizes the pre-November 22, 2019 rules for TEAs

p. 273 Assessing TEAs at the I-924 stage

p. 282-287 discusses acceptable sources and methods for determining MSA, population, and unemployment rate

p. 292-302 and 320 gives instructions for verifying unemployment rate and geographic areas online

p. 306-307 evaluating rural areas

p. 314 poses multiple location scenarios with questionable TEA qualification, but does not specify which are acceptable and which not

327-443 Capital and Investment in EB-5 Adjudications Reviews the existing regulations, policy, and precedent decisions with respect to investment of capital

p. 339 redacts a comment on the Zhang Class Action

p. 354 lists items that an escrow agreement “normally includes”

p. 358-366 examples of problematic escrow agreement provisions, including extended discussion of hold-back clauses (p. 362 gives an example form CHAP of an acceptable holdback)

p. 391-393 gives some legally dubious guidance on impermissible debt arrangements, while p. 395-398 give questionable examples of impermissible redemptions

p. 403-405, 407 give examples of impermissible guaranteed returns

p. 409-415 is devoted to detailing the “chance of gain” requirement

p. 421, 423 discuss evaluating evidence of capital made available for job creation

p. 425-429 examples of multiple-JCE scenarios with capital not at risk

p. 435-439 examples of actual undertaking of business activity

P. 426 “If the NCE’s business is to pool capital to loan to a separate JCE, then sufficient business activity may be shown by an executed loan agreement obliging the NCE to loan Petitioner’s invested funds to the JCE.”

444-472 Minor Investors: Special Considerations for Adjudicating I-526 Petitions Filed by Minors Extensive discussion not published elsewhere on issues of minors as EB-5 investors. Most citations are to the USCIS-internal Consolidated Handbook of Adjudication Procedures (CHAP).
474-524 Lawful Source of Funds in EB-5 Adjudications Reviews the existing regulations, policy, and precedent decisions with respect to lawful source of funds

Emphasizes throughout the issue of path as well as source of funds

p. 483-484: References the Zhang class action and “Pre-Zhang” and “Post-Zhang” requirements

p. 502-506, 513 discusses requiring non EB-5 investors in an NCE to demonstrate lawful source of funds

p. 507-509 discusses in issues with E-2 investors filing for EB-5

p. 512 “If you see cryptocurrency ( e.g. Bitcoin, Ethereum, Ripple, etc.) anywhere in the source of funds claim, then please email IPO policy and your first line supervisor to seek guidance.”

Processing Time Report Update

I’ve been a bit overwhelmed by all the nonsense and potential disaster available to write about. USCIS may or may not be about to start staff furloughs next month as the agency, administration, House, and Senate busily blame each other over funding, no two lawyers seem to agree on if/when/how an incoherent executive order may or may not devastate Hong Kong immigration, consulates keep stalling on interviews even when pandemic control justifies opening (Vietnam being a striking example), Administrative Appeals Office decisions make me weep, and USCIS just redesigned its website to break my links and make everything harder to find. But as the industry’s official Ms. Processing Times, I’ll at least attempt to shed light and sense on one issue: the latest processing times report.

Despite the report, USCIS is certainly not currently occupied in processing I-526 filed 46 to 74.5 months ago.

I’ve tried to give the USCIS processing times page credit for reporting consistent with a methodology, even if that methodology is confusing and unhelpful. But with the latest report update, I can only conclude that the report has lost its moorings.  Here’s the latest update for I-526 processing times.

USCIS will be happy if people look at this report and think “Oh I guess a petition filed two years ago is not unreasonably delayed after all. I guess it’s too early to make inquiries to IPO customer service or Congressional representatives or to sue USCIS with a mandamus action, now that the report defines 46 to 74.5 months as normal processing for I-526.” This conclusion is very convenient for USCIS. They’re being flooded with inquiries and litigation over delayed processing, and need people to believe that they’re bogged down in cases from four to six years ago, and thus innocently unable to process two-year-old cases. Unluckily for USCIS, we in the community have records that show that the report cannot be true.

First, consider the “case inquiry date” in May 2014. If you believe the current report, an I-526 is not “outside normal” processing unless it was filed more than six years ago. We have two ways to put that claim in context and find it senseless.

  • According to USCIS form processing data, there were approximately 10,000 I-526 pending in May 2014, and over 48,000 I-526 have been adjudicated since May 2014. By the numbers, I-526 processing has passed 2014 and earlier petitions by tens of thousands. So how could any I-526 from 2014 be left on file? If by chance there were any recent adjudications on petitions somehow left tens of thousands of places behind, that’s clearly nothing to do with “normal processing.”
  • According to past USCIS processing times reports (which I have logged at least monthly since 2014), the most recent time USCIS reported it was working on May 2014 I-526 petitions was five years ago, in June 2015. (Note the reports before 2018 are in a separate tab in the Excel log referenced.)  Even when the case inquiry date started to look inflated in 2018, it never went back to 2014. And now, in July 2020, USCIS wants us to believe that it has suddenly returned to processing the inventory of petitions that it previously reported processing five years ago? And even if our memories didn’t go back to 2015, but only extended to last month – doesn’t USCIS think we’ll be suspicious when the boundary for “normal processing” was placed at 44.5 months in June 2020, and suddenly moved back to 74.5 months in July 2020? The reports are simply not plausible, when considered as a pattern.

The same reference sources can be applied as context to the lower end of the reported “estimated time range,” which supposedly represents the median of processing times in recent adjudications.

  • According to USCIS form processing data, there were 20,804 I-526 pending 46 months ago, in September 2016. USCIS data further shows that over 33,000 I-526 have been adjudicated since September 2016. 21,000 – 33,000 = <0.  So zero is approximately how many I-526 petitions could possibly be still left from 46 months ago and earlier, if there’s been any kind of order to I-526 processing.
  • Processing is rather disordered, and as of October 2018 USCIS reported 2,021 outlier I-526 left from before September 2016. Of those, 917 were Chinese that would now be excluded from adjudication by the visa availability approach. None of those oldest 2,000 oldest petitions should be left today considering that USCIS reported processing over 6,000 I-526 since October 2018. Certainly, there can’t be enough left to occupy 50% of IPO’s I-526 processing capacity, as the USCIS processing times report is now trying to suggest.
  • The pattern of USCIS processing times reports also undermines any appearance of sense for the lower end of the “estimated time range.” June 2018 was the most recent time that USCIS reported September 2016 as marking the median of recent I-526 adjudications. Since mid 2018, the processing times report has indicated that USCIS has slowly been working through I-526 filings from 2017 into 2018. Until yesterday, the lower end of the estimated time range put the I-526 median in early 2018. I believed that, because anecdotally I’m seeing a lot of I-526 approvals on early 2018 cases. I cannot believe today’s processing times report when it suddenly pushes the lower end of the estimated time range back to where it was reported to be two years ago.

Clearly, the USCIS processing times report can’t be reporting based on the methodology that it claims to use: giving the median and 93rd percentile for processing times of actual I-526 recently adjudicated. Realizing that, people have been trying to guess at an unstated methodology. Although the report states that it’s backward-looking, reporting historical data and not predicting future processing times, some people guess that the report has secretly been changed to be a predictor of future wait times in expectation of possible mass USCIS staff furloughs. Although the report states that it has not been updated to reflect the visa availability approach (with an alert promising that “in the future, we will update”), some people guess that the mysterious current report can be explained as an unannounced reflection on country-specific treatment under the visa availability approach. Although the report states that it’s objectively indexed to what was actually happening with processing about two months ago, I guess that USCIS has started just making up numbers to protect themselves against lawsuits. All we know for sure, considering the references cited above, is that the report is inconsistent with its nominal methodology. Any guesses about an unstated methodology are potentially correct, but unsure in absence of statement. Either way, it’s impossible to draw conclusions about reality from the current processing times report. For I-526, I rather credit inventory data, anecdotal evidence, and previous processing times reports that suggest USCIS has progressed to processing I-526 filed in early 2018. (And some more recent, as people such as medical professionals battling COVID-19 and residents of countries wracked by civil unrest successfully request expedited treatment, while others succeed in Mandamus even for recent dates by pointing out that all of 2019 was an administrative delay.)

My hypothesis that the USCIS processing times report has become a lever to influence community beliefs and behavior, not a report of facts, is bolstered by the I-924 time report. Year to date, USCIS has reported the I-924 processing time range at 4 to 8 years. Suddenly this week, USCIS changed that to 1 to 3 years. That makes sense as a decision to stop discouraging demand for IPO’s highest-revenue form. The report pattern is tough to explain otherwise.

If you benefit from my long-term commitment and hard work to record, share, and interpret USCIS data, please consider making a contribution toward what’s otherwise uncompensated effort. I appreciate any support.

Interpreting Processing Times Reports

And now, to demystify the USCIS Check Case Processing Times page, which as of today gives these processing times reports for EB-5 forms.

I’ve written a guest article for LCR Capital on Interpreting the USCIS processing times report. The article examines the disconnect between the content and application of the report, and goes in-depth on the following questions:

  • Does the USCIS Check Case Processing Times Page reflect the way that USCIS currently processes petitions?
  • Does the “estimated time range” on the Check Case Processing Times Page refer to the age of petitions that USCIS is processing now?
  • Does the “receipt date for case inquiry” define the limit between normal processing and unreasonable delay?
  • Why does the “receipt date for case inquiry” move so erratically, and sometimes retrogress?
  • Why are the “historical average” processing times reported by USCIS so different from the reported “estimated time range” for processing?
  • How can I estimate the processing time for my petition?

I wrote the article to give clarity and well-researched ammunition to people who may be discouraged and blocked by the USCIS processing times report, but should not be. My article addresses this core conflict:

  • USCIS uses the processing times report to create expectations about “normal processing,” and to shut down inquiries.
  • If you look at what the reported times represent, they in fact define abnormal and delayed processing.

For example, 29.5 months for I-526 indicates, specifically, that 50% of I-526 recently processed had been pending less than 29.5 months. So if my I-526 has been pending for 30 months, the report tells me that I’m being left behind – that over half of recent decisions were on cases younger than mine. And yet some people – including IPO, if I inquire – will blindly treat 29.5 months as the starting point for normal processing, not as the marker it is for delayed processing. Meanwhile, 44.5 months reportedly represents the 93rd percentile of delay in recently-adjudicated cases – by definition, an extreme outlier. Why should we accept the USCIS position that a petitioner doesn’t have a right to inquire unless and until he or she is an extreme outlier?

Or take the appalling 58.5-119 month “estimated time range” reported for Form I-924. How many regional centers have been discouraged by that report from even trying to file Form I-924, despite the importance of that form for project review and program integrity? And yet the report does not actually indicate that I-924 filed now will wait a long time. The processing times report does not claim to report future wait times, average recent wait times, or the age of the inventory. The report merely reflects the fact that half of petitions recently processed happen to have been waiting a long time. At last report, there were only 149 Form I-924 still pending at USCIS. In 2018, USCIS processed that many I-924 every quarter. Who then accepts the current estimated time range of 5-10 years as any reflection on normal processing?

For full discussion, see my article Interpreting the USCIS processing times report.

Bonus Features

Comparing Report and Reality: The following chart illustrates the processing reality for one quarter for which we have happen to have comprehensive data: October to December 2018. The USCIS processing times report during that quarter gave an estimated time range of 20.6 to 26.5 months for I-526 processing. Meanwhile, we now know that most I-526 processed in that period had been pending 10 to 15 months. And the chart shows the reality behind the USCIS claim: “We generally process cases in the order we receive them.”

Country-Specific Processing: When USCIS implemented the new visa availability approach to I-526 processing, they promised that the processing times report would be updated to reflect the new reality. The new approach took effect April 1, 2020, and the report has still not been revised as of June 2020. It still states “We generally process cases in the order we receive them,” and the time estimates have not been updated appreciably since March. While the report has never been a guide to future processing times, it’s particularly unhelpful now that it’s unmoored from the new reality of country-specific I-526 processing times. My I-526 processing time consultation service attempts to provide the service that USCIS should give, but does not. I approach the visa availability impact by piecing together data from different sources to estimate the current composition of the I-526 backlog by country and priority date. Having this picture in view, I then pick out the portions of the inventory that may be sidelined or fast-tracked by the visa availability approach, considering visa availability predictions, and consider the timing outlook in terms of light of volume trends.

 

 

Cooperating to share experience and support the program

Thank you to EB5 Investors Magazine for launching an initiative to showcase positive EB-5 stories. Regional Centers and project companies, please make this effort succeed by taking time to reach out and contribute information about your completed EB-5 projects. The airwaves desperately need stories of real-life experience with EB-5 success. Otherwise, the conversation and our reputation will continue to be defined by the few projects that make the news for bad reasons.

Showcase the positive impact the EB-5 program has had in America
EB5 Investors Magazine is launching a special feature to showcase how the EB-5 visa program has provided a positive impact across the nation by creating American jobs while stimulating our economy.

Please share how your completed EB-5 projects have had a beneficial effect on America. Details of your completed EB-5 projects will be used in material to promote the success and economic impact of the EB-5 program!
Let’s show our policy makers, industry influencers, interested EB-5 program participants and everyday Americans how much investment and jobs the EB-5 program creates!

Click here to share your EB-5 project details!

IIUSA has also emerged with calls to action to support the industry.

  • The IIUSA Public Policy Committee, of which I am a part, is preparing to engage with USCIS on the topic of unreasonable adjudication practices. To this end, we are collecting examples of recent Requests for Evidence and Notices of Intent to Deny that reflect new adjudication trends and make unreasonable requests. Do you have examples? If so, please redact personal information out of the RFE or NOID, and email to education@iiusa.org. The committee will use these examples to inform a robust response. (https://twitter.com/EB5IIUSA/status/1262832809162530819)
  • IIUSA is calling on all EB-5 stakeholders, economic development professionals, and businesses around the country to sign a public letter of support. The letter, addressed to members of Congress, highlights the economic benefits of EB-5 investment, including job creation and retention for U.S. workers and local economic development.
  • IIUSA offers a template to assist stakeholders in submitting op-eds to their local publications.