Interpreting November 2020 EB-5 Visa Availability Predictions from Charles Oppenheim

On November 19, 2020, IIUSA held a webinar about EB-5 visa availability with Charles Oppenheim. Chief of the Visa Control & Reporting Division at the U.S. Department of State.

Those who missed this information-rich presentation can purchase the recording here. IIUSA rightly makes Oppenheim’s slides available for free to the public.

The detail from Oppenheim’s visa availability presentation is particularly relevant for EB-5 investors from mainland China, Vietnam, India, and potentially South Korea. The rest of the world, you can skip this difficult post, except the first two questions (no news on consulates resuming normal operations, but good news for Hong Kong status).

My post organizes information from Oppenheim’s presentation around key questions, and interprets data from the slides with reference to Oppenheim’s explanations from the  presentation, as well as information that I’ve gathered from other sources or read between the lines.  (I apologize for the delay in this post.  It was not easy to write, and I’ve also been spending time trying to earn some money with my business-plan-writing day job. If you’d like to help sponsor me and create compensation for this blog work, here’s a PayPal contribution link. I much appreciate the few readers who have stepped up in support. Meanwhile, I have other belated posts/comments coming soon to share more information about I-526 processing developments and discuss promising implications of changes in Washington.)

Are EB-5 applicants from Hong Kong now considered in the same category as Mainland China?

Oppenheim answer: “No. At this time Hong Kong is still at this point treated as a separate foreign state, for IV purposes, going forward.”  (Clip from the recording.) This is great news for Hong Kong EB-5 applicants. Thank you Department of State for resisting chaos and holding firm to the law.

When will consular processing resume for EB-5 visa applicants?

Oppenheim still has “no idea” when consulates will return to normal processing status. With consular operations in question, Oppenheim currently estimates that EB-5 visas actually issued in Fiscal Year 2021 will be below the number theoretically available. (His estimates account for the fact that a quarter of FY2021 has already been lost for visa issuance abroad.) On the bright side, any family-based visas that likewise can’t be issued this year will increase the EB-5 quota again next year, providing some compensation/another chance to reduce the EB-5 backlog.

What’s the latest news about visa numbers issued and available?

  • Of the 11,112 EB-5 visa quota for FY2020, Department of State actually issued only 3,602 visas. (Thanks to consulates having been mostly non-operational since March 2020.)
  • The EB-5 visa quota is 18,600 for FY2021, of which about 11,300 could potentially go to China (7% per-country quota of 1,302 visas plus the at least 10,000 visas likely leftover from the rest of the world). However, consulates are still not issuing visas, so actual visa issuance will again fall below the available limit. Oppenheim mentioned an in informal guess that it might be possible to actually issue about 3,000 visas to China and 600 to Vietnam in FY2021.
  • The EB-5 visa quota for FY2022 may be at least 14,200, based on Oppenheim’s informal estimate that the EB category may be 200,000 in FY2022 due to another roll-over of family-based visa numbers.

Is the government willing or able to issue more EB-5 visas through adjustment of status, to compensate for ongoing limits on consular processing?

Oppenheim stated that the visa bulletin might be moved in FY2021 to accommodate adjustment of status for EB-5 applicants in the U.S., if consular processing abroad remains limited. That sounds promising. However, the numbers suggest that this did not happen in FY2020.

Per Oppenheim’s presentation, only 1,117 EB-5 visas were issued in FY2020 through adjustment of status – even fewer than in a normal year. (According to Annual Reports of the Visa Office 1,589 EB-5 visas were issued through adjustment of status in 2019, and 1,289 in 2018.) Adjustment of status in FY2020 was not limited by the EB-5 visa quota (since only 32% of available EB-5 visas were actually issued in the year), or by low demand (Oppenheim mentioned there are about 2,500 I-485 pending at USCIS for China-born applicants).  Therefore, I guess there must have been a choice to not move the visa bulletin in FY2020 in a way that would let AOS applicants advance ahead of consular processing applicants. Alternatively, USCIS slowness blocked the path.

The China queue particularly suffered in 2020 with respect to status adjustment. The number of visas issued through status adjustment for China-born applicants in FY2020 was nearly identical to the numbers from 2019 and 2018 (489, 433, 481). China ended FY2020 with over 3,700 fewer issued visas than expected, despite apparently having 2,500 applicants ready to go through adjustment of status. I wonder how many fewer visas might have been lost for China, if Department of State had only moved China’s final action date more in FY2020 to maximize adjustment of status? Oppenheim informally estimated that it might be practically possible to issue 3,000 EB-5 visas to Chinese and 600 EB-5 visas to Vietnamese in FY2021, despite there technically being about 11,300 EB-5 visas available to China and 1,300 to Vietnam, this year. His pessimistic estimate must mean limited expectations for adjustment of status as well as consular processing in FY2021. But maybe the incoming administration will clear politically-motivated roadblocks from the immigration path more quickly than we expect.

What movement can we expect from the Visa Bulletin in FY2021?

  • China: Oppenheim does not foresee advancing Chart B for China for the “foreseeable future” because, he said, almost 8,000 China-born applicants are already ready to go at the 12/15/2015 Chart B date. (If Oppenheim is right to guess that consulates/DOS can only practically manage to issue about 3,0000 visas to China this year, and about 3,500 to 4,000 next year, then Chart B would not have to move for China until late next year. The picture would be different if consulates/DOS were able to actually issue the approximately 11,300 EB-5 visas that are technically available to China this year. It would also be different if the Visa Bulletin moved just to maximize adjustment of status for China while consulates remain nearly non-operational.)
  • Vietnam: Oppenheim reports that about 475 applications are ready to go for Vietnam based on the December 2020 visa bulletin movement. That’s enough to go on for awhile, considering that the consulate in Vietnam is still only conducting handfuls of interviews, and that Vietnam apparently has very few EB-5 applicants using adjustment of status. (Combining Oppenheim’s numbers for total visa issuance with consular reports that I tracked in FY2020, it appears that only 8 Vietnamese got EB-5 visas through adjustment of status in the U.S. in FY2020.) But if Oppenheim is right that it will be practically possible to issue at least 600 of the 1,302 visas technically available to Vietnam this year, then the Visa Bulletin will have to move again for Vietnam later this year so that more than 475 applicants can get visas.
  • India: It appears that Oppenheim expects India to say current in the Visa Bulletin throughout FY2021. He did not say this, but he left India off of the slide listing countries “at limit” in FY2021 (“Otherwise Unused EB-5 Numbers FY 2021 (Estimated)”).  And I’m not surprised, since apparently about 87% of the India backlog is still stuck at the I-526 stage, where it’s practically unable to trigger the visa limit and visa bulletin. So long as the number of Indians who manage to reach the visa stage remains far below 1,300 (the number of visas technically available to India this year), India will not need visa bulletin limits this year. As of October 1, 2020, there were 799 Indians with applications on file at NVC. Oppenheim did not report how many Indians have pending I-485 in the U.S. but I gather that this number is rather off his radar. It doesn’t appear in his wait time calculation for India. (Combining Oppenheim’s numbers for total visa issuance in FY2020 with monthly consular reports that I tracked in FY2020, it appears that 301 Indians got EB-5 visas through AOS in FY2020 – about 50% of the India total. That’s relatively significant, and means maybe Oppenheim should be paying more attention to India demand through adjustment of status. On the other hand, maybe Oppenheim just reasonably assumes that USCIS will be too slow to advance another 500 Indian applicants to the visa stage in time to push India over the FY2021 visa limit.) If Oppenheim does not expect India to reach the visa limit this year, that’s mixed news. A current visa bulletin will be good for Indians near the front of the line — those who manage to get past I-526 approval this year — since they can proceed unhindered to file visa applications and potentially get final action. On the other hand, it’s bad news for Indians currently nearer the back of the line, because it means that the visa line ahead is moving slowly, and will be reduced this year by much less than the 1,300 applicants who would have exited the line if India were able to reach its visa limit this year.
  • Other countries: No other countries are expected to reach visa limits this year.

How can I interpret the EB-5 visa wait time estimate?

Visa wait time estimates use a simple formula: A/B=C, where A is estimated number of people currently in line for a visa, and B is estimated average number of visas available per year.

This calculation appears on the following two slides that we eagerly await in each presentation. The orange column in the first slide is variable A, the blue bars in the second slide represent result C, and Oppenheim’s assumption about variable B can be inferred from A/C. I’ve put a table below the slides clarifying how the calculation works.

Interpretation of the slide EB-5 Applicants with Petitions on file at NVC and Estimated USCIS Applicant Data as of 10/1/2020

CountryActual # applicants at NVCDOS estimated # applicants with petition on file at USCISEstimated TotalEstimated years to visa availability for a petition filed “today”Implied assumption of average visas issued per year
 iiiA=i+iiC=A/BB=A/C
Brazil2749401,2141.8700
China Mainland44,80312,15856,96117.23300
India7994,9665,7657.8700
South Korea2052,5942,7993.8700
China Taiwan1481,5351,6832.4700
Vietnam1,6623,8375,4997.9700
Rest of World1,1727,9109,082
Grand Total49,06333,94083,003

A few points to note:

  • Years to Visa Availability: The wait time estimate refers to years from the date of I-526 filing to the date of having a visa available for conditional permanent residence. The wait time estimate is a function of how many total people are in the process, regardless of where they are in the process or how long or short I-526 processing times or other processing may be. For example, 1.8 years for Brazil just means that there are enough Brazilians in the system today to claim 1.8 years of available visas. The actual visa wait time for a Brazilian filing today will likely be longer simply due to the separate factor of I-526 processing times, which have been longer than 1.8 years. For countries facing long visa availability waits regardless, I-526 processing times occur concurrently with, not consecutive to, the visa availability wait. (Though I-526 processing time can affect the visa availability wait if USCIS approves petitions out of date order.)
  • Applicability: Oppenheim’s table makes a timing prediction specifically applicable to a single point in time: Estimated years to visa availability for a petition filed “today” October 1, 2020. Remember, this is a queue problem. At any given moment, the remaining wait time for each person standing in a long queue is different depending on how close or far that person is from the front of the queue. There’s no such thing as “a wait time for Vietnam,” but only “a wait time for someone from Vietnam who entered the queue at a certain time.”  Oppenheim’s wait time estimate specifically applies to the very back of the queue. If you’ve already been in the queue for awhile, then your estimated wait time will be shorter than whatever’s estimated for your country in Oppenheim’s calculation for today. (We can estimate how much shorter by switching out the data in columns i and ii in the above table, replacing it with the subset of applicants who have earlier I-526 filing dates than yours.)
  • Vietnam: The calculation reveals a typo on the bar chart slide. Vietnam should be 7.9 years, not 7 (consistent with the height of the bar and the assumption that Vietnam’s average visa availability assumption is the same as every other country: 700, not 800). 5,499/700=7.9, not 7.
  • South Korea: I note a jump in the number of future South Korean applicants in the I-526 stage. The estimated wait to visa availability for a South Korean filing today (3.8 years) is now long enough to potentially exceed I-526 processing times. If USCIS takes less than 3 years to advance all those South Koreans to the visa stage, then someone filing I-526 today from South Korea might find himself in a South Korean crowd at the visa stage, with the Visa Bulletin then providing crowd control with final action dates. This concern does not apply to Brazil and Taiwan, where estimated visa availability waits remain well below processing times.
  • China: The most controversial assumption in Oppenheim’s calculation is annual visa availability for China. Oppenheim explained that the current estimates assume about 3,000 visas for China in FY2021 and 3,500 to 4,000 visas in future years. (Thus the average 3,300 in the calculation – higher than the 3,000 used in his last wait time calculation from October 2019.) However, Oppenheim granted that China could well reach more like 7,500 visas per year — considering low incoming rest-of-the-world demand, and that country caps limit India and Vietnam to only about 700 visas each per year for the next 7-8 years. If the China wait line estimated at 56,961 could proceed at a future speed closer to 7,000/year than 3,000 per year, then the estimated time of arrival for someone now at the end of the China line could fall to almost half of the current estimate.
  • Assumption about future visa applicants to result from pending I-526: The green column — DOS estimated # applicants with petition on file at USCIS –is calculated by multiplying the number of I-526 pending at USCIS by assumptions about I-526 denial rates and family size. I have reverse engineered this calculation, based on Oppenheim’s hints about his assumptions (including from a slide in the presentation that gives “average percentage of EB-5 principal investors” – meaning of all EB-5 visas issued, how many were issued to principals rather than family). I won’t add that detail to this already overlong post, but pause to note that these assumptions are also open to rethinking. The I-526-to-future-visa-applicant multiplier that Oppenheim uses for his calculation is based on historical experience, and does not look forward to future differences from potentially increased age-outs, attrition, and denial rates.
  • Applicants not counted: It’s important to remember that in real life, the blue and green column in Oppenheim’s table are less than the total inventory of future EB-5 applicants. Oppenheim’s table counts inventory in two places: pending I-526 at USCIS, and documentarily qualified applicants pending at the National Visa Center. Future EB-5 applicants also exist in these other places not counted in Oppenheim’s Estimated Total: applicants on pending I-485 at USCIS, and people with I-526 approval but not yet on file at NVC due to delays in getting/submitting documents or to the fact that Visa Bulletin Chart B prevents them from filing yet. I guess Oppenheim leaves these categories out of the calculation because pending I-485 numbers were historically small and it’s hard to count people associated with I-526 approvals who aren’t yet on file at the visa stage. But these missing categories are significant at least for India, which has a lot of people doing status adjustment in the U.S. (50%, in FY2022), and China (as evidenced by the fact that the number of Chinese applicants at NVC increased by almost 10,000 between October 2019 and October 2020—an increase that must have come out of that uncounted twilight zone between I-526 approval and visa stage, since it it’s not reflected in I-526 inventory change between October 2019 and October 2020.)

Does Charles Oppenheim overestimate or underestimate actual EB-5 wait times?

Let’s go back to our equation, A/B=C, where A is estimated number of people currently in line for a visa, and B is estimated average number of visas available per year. Oppenheim overestimates or underestimates wait time C depending on the accuracy of A and B, which contain assumptions about what will happen in the future.

As discussed above, Oppenheim’s calculation of A can be challenged by questioning his assumptions about future family size and attrition rate (which would make his A calculation err high), and/or by pointing out the missing categories of future applicants (which would make his A calculation err low). B could be an underestimate if future visa availability is greater (which will almost certainly be true for China, considering low rest-of-the-world demand, and could be true for everyone if visa reforms get enacted).

So, it’s complicated. I dream of hosting a webinar with a spreadsheet that lays out the variables and formulas, and we can play what-if games together with the numbers. What happens to the wait time estimate result if I plug in an assumed average I-526 denial rate of 70% instead of 80%? What happens if I add a  guessed 10% attrition rate at the visa stage? What if I guess 10% of children per year aging out? What if I delete the family size variable from the equation entirely in case the law changes to only count investors? What if I start from I-526 filing numbers to try to quantify those uncounted categories of people who have I-526 approval but not on file at the National Visa Center? How does the calculation change if instead of picking one average number for visa availability, I look at visa availability year-by-year into the future based on what I know about how the current backlog will spread out over time?  If I need my wait time to be a maximum five years, say, what combination/quantity of changes could yield that estimated result? (And how plausible do those changes look?)

Indeed, I have prepared visa timing scenario analysis, if I can manage to wrap it up in a sellable package. The alternative to such a complicated exercise over Excel is to think wishfully “Well since the wait time is complicated and questionable maybe the wait time is actually short, at least as short as I need it to be.” I’ve heard that sentence spoken in almost those words, again and again. But people with lives/business/investment dependent on actual EB-5 timing – project companies or investors – need a better sense of the probabilities. If you’ve read patiently to the end of this long and difficult post, I count you in this vigilant group, and will try to be available for additional assistance.

By the way, you can visit my Data Room page to find links to Oppenheim presentations from previous years. Or if you’d like to book a consultation with me, I will curate data for you relevant to your specific questions and concerns. I dare say that I have my fingers on every piece of quantitative information that has been published for EB-5 in the last 10 years, and most of what’s available from the past 27 years.

FY2020 Q3 Processing Data

USCIS has finally published form processing data for FY2020 Q3 (April to June 2020) on the USCIS Immigration and Citizenship Data Page. As with last quarter, EB-5 form data is now only presented in the All Forms report, to make it maximally difficult to find and read. Here is the summary, followed by charts to put the data in context of historical trends.

EB-5 Petition Processing Data for FY2020 Q3 (April to June 2020)

FormReceiptsApprovalsDenialsPending
I-5264057634615,955
I-8297397252310,332

Notes on the charts:

  1. The I-526 trend chart suggests a possible method in IPO’s madness. Maybe their goal is to reduce approvals to equal denials. As discussed in the previous post, the volume of I-526 adjudications has been extremely low overall under Sarah Kendall’s watch. But the data shows that IPO has been denying as many I-526 as ever – it’s just approvals that have fallen. And perhaps not coincidentally, approvals track denials over the last five quarters.
  2. I-526 receipts remained extremely low into Q3. And who is surprised? When USCIS proposed raising the EB-5 investment amount, they projected that the major price increase would result in raising more money. I tried to explain the Law of Demand in my comments, and was ignored. And now we see: doubling the minimum EB-5 investment amount resulted in raising 45 times less investment per quarter in FY2020 than the average for 2013 to 2019. Policy-makers, is this what you want? Recent IPO behavior, the pandemic, and visa oversubscription also share blame for decimated demand. If the United States actually wants billions of dollars in EB-5 investment, not to mention the 10+ new jobs required to come with each investment, EB-5 program policy reforms are needed.
  3. I-829 receipts and adjudication volume do not show particular upward or downward trends.  The I-829 approval rate remains high. Volume of adjudications makes clear that IPO has reallocated resources away from I-526 to I-829.
  4. If IPO continued to process pending petitions at the rate evidenced in Q3, then they will take 4.3 years just to process all currently-pending I-526 and 3.5 years to process currently-pending I-829. Those rates would be over 7 times slower than Congress intends. I trust productivity will be improved, and future processing times will not actually be that long.
  5. If IPO continues to approve I-526 at the rate shown in FY2020 Q1-Q3, it will only approve about 2,200 I-526 per year – far below the level needed to use the typical 10,000 annual EB-5 visa quota. This is what building The Wall through legal immigration looks like, and needs to change.
  6. In 2020, form receipts at IPO were five times below the average since 2016. That means five times less fee revenue. And USCIS wonders why it has budget problems. (One of the many questions Sarah Kendall did not answer last week was my question about how IPO would maintain integrity in adjudications, in light of reduced fee revenue due to reduced volume of receipts.)
  7. The Q3 report clarifies that the I-924 row combines regional center terminations and reaffirmations with I-924 application filings. Since such a combination is meaningless, I am no longer reporting I-924 data points.

For all the in-process investors reading this and thinking “what does this mean for me,” here’s how to think about the question. Take the number of pending forms just reported in your category, divide that by the number of approvals plus denials just reported for your form type, and the result is the number of quarters it would take to process every petition in the inventory, assuming first-in-first-out order and that future processing volume doesn’t increase or decrease. This number probably gives a ballpark estimate for the very longest your petition could take, assuming that processing is more likely to, in fact, get better than worse from here, that you’re not at the very end of the line, and that exceptions to FIFO order will benefit rather than delay your petition. (If you’re from China or a very recent investor from India and Vietnam, the picture gets more complicated for I-526.) In my I-526 timing consultation, I try to drill down further to quantify exactly where you are in the queue and how queue movement will affect you, considering the impact of filing surges, the distribution of I-526 filings by country, the visa availability approach impact, political factors, and what I see anecdotally vs what’s reported about I-526 processing. But it’s complicated by limited data and the number of exceptions to FIFO. May USCIS one day get staff and leadership who believe in order and transparency, so that simple questions about process timing can get the simple answers they deserve.

EB-5 process illustration (Visa Bulletin questions)

The Visa Bulletin exists to provide crowd control for the visa process. But it’s complicated – even for Department of State apparently, as they’re currently over a week late with the November 2020 visa bulletin. What’s happening behind the scenes, as DOS tries to decide what to put in the visa bulletin?

The visa process and timing for EB-5 are complicated by a multi-stage and multi-constraint process. The Visa Bulletin exercises a measure of control by publishing filing and final action dates that help to pace visa demand to match available supply. But knowing supply and demand is not enough to guess the visa bulletin, thanks to other factors at work.

In an attempt to add some clarity, I made a visual to illustrate the stages and constraints that determine what happens with the visa bulletin and EB-5 visa wait times. (This is part of my still forth-coming but belated webinar on China EB-5 visa timing – my apologies to those who have been waiting patiently.)  I hope that this image can help to orient readers and replace a thousand words of explanation.

Points I particularly want to make with this image:

  1. Getting a green card is roughly a two-stage process (first I-526 petition, then visa application), but includes five places where an in-process EB-5 applicant could be at any given time. To estimate visa wait times, which depend on total EB-5 demand, one should count applicants in all five places. For the visa bulletin, which depends on currently-eligible EB-5 visa demand, Department of State just looks at people in four places. DOS does not count pending I-526 for visa bulletin analysis, since this population can’t practically proceed to application filing or final action yet, lacking I-526 approval.
  2. The visa bulletin filing and final action dates serve as constraints to control the flow of people through the EB-5 process, but they’re not the only constraints at work. USCIS processing productivity also makes a significant difference in determining who gets to move to final action and when. And these days, COVID-19-justified shutdowns can block or expedite final action for individuals in practice.

Application to timing questions:

  • My priority date is available or current in the visa bulletin — why hasn’t my I-526 or I-485 been approved? Because the visa bulletin is not the only constraint. USCIS capacity and willingness to process petitions can also slow the process, even for petitions with visas available.
  • Why have India and Vietnam been getting different visa bulletin treatment despite having about the same predictions for total visa wait time? The wait time predictions for India and Vietnam in 2019 were about the same because they had about the same total number of people in process. But — at different stages. Many Vietnamese have approved I-526, and thus in the stage where the visa bulletin controls their forward movement. Meanwhile, many of the Indians still have pending I-526 – thus still out-of-range for the visa bulletin. Therefore, recent visa bulletins have been tight for Vietnam but loose for India.
  • Does the relaxed visa bulletin for India mean that total visa wait times for India have shortened? Not for everyone. The current visa bulletin needn’t account for the thousands of Indians with pending I-526, but those thousands still exist. Most will eventually get I-526 approval, one trusts, thus expanding the visa-stage queue and triggering future visa bulletin movement.
  • Can total EB-5 visa demand be estimated by adding applications pending at the National Visa Center to applicants associated with pending I-526? Yes, as an approximation. But keep in mind that this method counts two of the five stations where applicants can be at any given time. This reminder is particularly important for China timing estimates, which have risked undercounting demand.
  • Does the visa bulletin affect everyone at the visa stage equally? Not necessarily, because the visa stage is divided into groups with different circumstances. Applicants at the National Visa Center and on I-485 might react equally in a normal year, but not in 2020, when COVID-19 precautions have blocked final action for consular processing but not status adjustment. If DOS does advance visa bulletin final action dates now, it will practically only help I-485, while potentially disadvantaging visa applicants dependent on closed consulates.
  • Why is Department of State still sweating over the November 2020 visa bulletin? Because it’s tough to create order right now in the visa process. Should DOS relax the visa bulletin to let U.S.-based applicants go full steam ahead, with the benefit of maximizing visa usage in a heavy supply year but the disadvantage of leaving applicants abroad behind, and risking retrogression? Or should DOS tighten the visa bulletin constraint, and thus help keep an even playing field and avoid future retrogression — but at the cost of letting visas go unclaimed? How do they balance the effect of the visa bulletin constraints with the effect of constraints outside their control: the pandemic, USCIS productivity, and USCIS willingness to advance documents through the process? Political winds may also be a factor. In the July 29, 2020 Hearing on USCIS Oversight, Rep. Zoe Lofgren mentioned that she had received complaints of administration officials overruling career civil servants with respect to the visa bulletin. No doubt Stephen Miller is motivated to do whatever he can to ensure that FY2021 does not fulfill its potential as a record year for EB visas issued. Congress has also flirted recently with changing the most important process constraint — the number of annual visas available. There’s still the president’s Executive Order on Hong Kong, yet to be interpreted and also possibly a sticking point. But I believe that the career civil servants are currently still working hard to navigate very complicated terrain in the fairest possible way.

UPDATE: The November 2020 visa bulletin finally published on 10/29/2020 has no surprises — same wording as usual, and dates consistent with the October 2020 bulletin.  The China cut-off dates remain specifically for “China-Mainland born.” Good job standing up for law and order, civil servants.

EB-5 Visa Availability in FY2021

October 2020 begins the government’s new fiscal year, which means a new set of annual visas available.

The October 2020 Visa Bulletin announces that that the annual limit for Employment-Based (EB) visas – normally 140,000 – will be approximately 261,500 for FY2021.

The quota for EB-5 (employment-based fifth preference) is 7.1% of total EB visas by law. So the EB-5 quota — which is approximately 140,000*0.071=9,940 in a normal year – will be approximately 261,500*0.071=18,567 for FY2021.

The country cap also shares visas on a percent basis – 7.0% to each country. So each country limited by the country cap can expect at least 18,567*0.07=1,300 EB-5 visas available in FY2021. China, the country with oldest EB-5 applicants, will theoretically get what’s left of 18,567 after deducting 2,600 visas for India plus Vietnam and however many rest-of-the world applicants can get I-526 approval and visa processing in time to claim visas (historically, under 4,000 visas).

What does this mean?

First, note that the extra employment-based visas available in FY2021 represent family-based visas that went unused in FY2020.  261,500 – 140,000 = 121,500, so we now know that 121,500 FB visas available in FY2020 were not issued, thanks to the combined effect of anti-immigration executive orders and consular closures. FB’s loss is EB’s gain. (I previously wrote a guest article explaining how the visa allocation process works, and anticipating the extra visas.)

[10/1/2020 UPDATE: Note that the updated version of the Heroes Act (coronavirus relief bill) passed in the House on 10/1 includes language in Division T Title I (PDF p. 2023-2024) that would change the allocation of unused visas for FY2021 and FY2022, returning family-based visas to the family-based category. This Democrat-centric bill currently has no chance to progress further. But if the language in the House bill did become law, then EB-5 would go back to expecting no more than 9,940 visas available in FY2021 and FY2022, instead of benefiting from unused family-based visas.]

What extra FY2021 visa availability means in practice for EB-5 will depend on whether and where available visas can be issued. Keep in mind these three constraints on the visa process:

  1. The number of visas available to EB-5. (This year will have almost twice as many as usual)
  2. How many visas the consulates can issue. (Still unknown when consulates will resume normal operations. A number of consulates – for example in nearly-virus-free Vietnam – have never had much pandemic excuse to close, and yet still at minimal operations, judging by monthly reports. The consular processing forecast going forward appears to depend on political as well as pandemic trends.)
  3. How many visas can be issued through adjustment of status. (This depends on how many EB-5 investors are in the U.S., how efficiently IPO can approve I-526 for those investors, and how efficiently USCIS can process I-485.)

The overall best case scenario is that consulates and USCIS will both go back to doing their jobs, and over 18,500 EB-5 visas will actually get issued in FY2021, equably to the oldest applicants both abroad in the U.S. That could shave almost one year off the expected visa wait times for Vietnamese and Indian investors, and deduct several years from the expected China wait time. (This benefit will be countered by however many expected FY2020 visas were lost due to consulate closures: we don’t know this number yet.)

Alternatively, if consular processing remains stuck while USCIS works efficiently in FY2021, then the few Vietnamese, Indian, and even Chinese EB-5 applicants able to use I-485 in the U.S. may skip their entire expected visa waits and get visas this year. Meanwhile, their compatriots abroad would face future wait times lengthened by the number of visas issued out-of-chronological order in the U.S. (and concurrently shortened by the number of visas issued above the average quota, if any).

Alternatively, if consular processing remains stuck and also USCIS continues operating at low volume, both for I-526 and I-485, then FY2021 may end with many of the technically-available EB-5 visas not having been issued to anyone. In that case, the unused EB-5 visas would be lost to EB-1 (as happened to any available EB-5 visas not issued in FY2020). In that case, EB-5 wait times (calculated based on the expectation of about 10,000 visas issued annually) would be lengthened across the board according to how far FY2020 and FY2021 fell below the expected average visas issued.

The Visa Bulletin is Department of State’s lever to channel visa demand. DOS knows more than we do about plans for consular operations, USCIS operations, and the number of people with pending I-526, pending I-485, and pending visa applications. So I try to read between the lines of the visa bulletin to understand what they know about constraints going forward.

Quoted from the October 2020 Visa Bulletin

E. MOVEMENT OF THE OCTOBER FINAL ACTION AND APPLICATION FILING DATES

Employment-based:  All of the Final Action and Application Filing Dates have been advanced at a very rapid pace, in anticipation of the FY 2021 annual limit being approximately 261,500, an all-time high.  The movement of these dates has been taken in consultation with USCIS Office of Policy and Strategy to accommodate processing plans for USCIS Offices during the coming fiscal year and to maximize number use within the FY 2021 annual limits.  Pending demand, in the form of applications for adjustment of status, and documentarily qualified immigrant visa applicants, is well below the estimated annual limit of 261,500.  Adjustment of status applications filed early in FY 2021 are most likely to be adjudicated during the upcoming fiscal year. [UPDATE: at about noon on 9/24, this last sentence was deleted from the visa bulletin.]

F. VISA AVAILABILITY IN THE COMING MONTHS

EMPLOYMENT-based categories (potential monthly movement)

Employment Fifth:  The category will remain “Current” for most countries

China:       No forward movement
Vietnam:   Limited forward movement

The above final action date projections for the Family and Employment categories indicate what is likely to happen on a monthly basis through January.   The determination of the actual monthly final action dates is subject to fluctuations in applicant demand and a number of other variables.

“All of the Final Action and Application Filing Dates have been advanced at a very rapid pace” in anticipation of a record-high visa limit, says the Visa Bulletin Section E. Only that statement is not true for the EB-5 category. The October 2020 Visa Bulletin has exactly the same Final Action and Application Filing dates for EB-5 as the September 2020 visa bulletin (except for the note about visa unavailability in case the regional center program is not reauthorized). The visa bulletin further predicts little to no forward movement for the China and Vietnam EB-5 dates at least through January.

With so many more visas available to EB-5, why isn’t the visa bulletin moving EB-5 dates? One factor is this statement in Visa Bulletin Section E: “The movement of these dates has been taken in consultation with USCIS Office of Policy and Strategy to accommodate processing plans for USCIS Offices during the coming fiscal year and to maximize number use within the FY 2021 annual limits.” Normally, visa bulletin date movement is just to maximize number use within numerical limits. It’s interesting that the visa bulletin admits a (presumably conflicting) second factor: “to accommodate processing plans for USCIS Offices.” DOS realizes that EB-5 visa issuance will be constrained by how efficient USCIS is planning to be this year. (Also, intriguing that the visa bulletin does not mention consultation with consulates about their also-relevant processing plans.)

Another factor in future visa bulletin movement: past visa bulletin movement. DOS already advanced the EB-5 Final Action and Application Filing dates very significantly in FY2020 to try to maximize visa usage under the consular processing constraint. The dates jumped in 2020 to August 2015 for China and August 2017 for Vietnam, which released a significant amount of visa demand. But then consulates all-but-stopped issuing visas, so that demand released by past visa movement is probably largely still waiting now for final action. Assuming consulates get back on track in FY2021, they may have enough EB-5 demand already to keep them busy for awhile due to constraints in 2020. Also, the fact that USCIS will now allow I-485 to be filed based on Chart B in October 2020 (while it had used Chart A since April 2020) opens up some additional visa demand for the new year. The EB-5 visa bulletin dates will only have to really jump forward for EB-5 if consular processing remains blocked indefinitely by the pandemic/politics, and the visa bulletin effectively just becomes a lever for adjustment of status demand.

This sentence from the visa bulletin Section E is also significant: “Adjustment of status applications filed early in FY 2021 are most likely to be adjudicated during the upcoming fiscal year.” [UPDATE: And even more significant: the visa bulletin was revised about seven hours after posting to delete this sentence.] The sentence suggests that DOS anticipates a good year of EB-5 visa availability for adjustment of status. Besides the increased visa quota, this could reflect predictions about limited visa demand from consular processing and/or limited volume of AOS applicants possible in light of I-526 circumstances. [The fact that the sentence was subsequently deleted suggests that USCIS called DOS to complain about representations regarding likely adjudication performance.]

For investors born in Mainland China (and people advising Chinese investors and planning redeployment), I do have a new visa timing analysis ready for China. It’s customized by quarter based on I-526 receipt data, and models scenarios around the I-526-to-visa ratio and potential range of future visa availability for China. But it’s complicated, with the number of variables involved. I’m thinking I’d better do something like a webinar or individual Zoom calls to talk through the data and scenarios, rather than just send a heavy Excel file with a book of comments. Please email me at suzanne@lucidtext.com if you are interested in my timing analysis service for China and have suggestions about the delivery and payment method that would work for you.

Investors born in Hong Kong, I still do not have news. But I notice that the October 2020 Visa Bulletin still just has the column title “CHINA-mainland born” in Chart A and Chart B, and mentions no limits for Hong Kong. So it seems to be business as usual, so far. The DOS U.S. Visa News page and the Hong Kong Consulate Immigrant Visa page have yet to interpret the Hong Kong executive order.

The employment-based visa backlog and wait times continue to be an issue of common concern, thanks to on-going lobbying around the Fairness for High-skilled Immigrants Act. I’ve written about this several times over the years, but will discuss the country caps again as time permits.

And a reminder of my PayPal link, which gives opportunity to support the effort behind this blog. As the EB-5 industry changes, your contribution will help preserve this space for in-depth, unbiased, ad-free, and freely-available EB-5 reporting.

I-526 Processing Time Report Update (country-specific)

The USCIS processing times report now offers three “estimated time range” sets for Form I-526: one for China mainland-born investors, one for other-area investors, and one for an unidentified third category. The report does not update the reporting methodology explanation. The outer end of the “estimated time range” for every category continues to be implausible, when compared against petition data. The report contains too many contradictions to accomplish its purpose of protecting USCIS from litigation, and I expect that it will receive another update shortly.

I’ve updated my processing time report log with two new tabs: one tab for logging the revised I-526 time report, and one tab with the most recent available I-526 inventory report (as of October 2018). The inventory tab offers a helpful fact check for the processing time report. For example, could it be true that USCIS is currently processing China I-526 filed 54 to 75 months ago (May 2014 to February 2016)? Look at the inventory tab, and count up (a) how many I-526 from before February 2016 were still pending back in October 2018, and (b) how many I-526 were processed since October 2018, until the visa availability approach started. That calculation gives the approximate number of February 2016 and earlier petitions that could be left to process today. The number is zero. Indeed, the processing numbers since October 2018 indicate that the worldwide backlog up to April 2017 should’ve been cleared by April 1, 2020, assuming that indeed “We generally process cases in the order we receive them.” Thus “we are currently processing China I-526 from February 2016 and earlier” appears to be a round-about way to report “we are currently processing almost zero China I-526.” Similarly “investors who filed I-526 before May 2, 2015 may submit case inquiries” is another way to say “almost zero investors may submit case inquiries.” Very clever, USCIS.

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.

Perspectives on the EB-5 visa queue (new I-526 approval report)

The wait time for an EB-5 visa depends on the number of people in line, and the rate at which the line moves. Both factors are complicated and can be tough to pin down. We’ve recently received significant new information related to each factor. This post attempts to put the new information in context. (Note: this post only concerns people interested in EB-5 timing for China, Vietnam, and India.)

The EB-5 queue normally moves at a rate of about 10,000 applicants per year, with about 700 per country, but this can vary. I recently wrote a guest post explaining How EB-5 Visa Numbers Will Increase in FY 2021. I have another post in progress to discuss visa availability and the movement of the EB-5 visa queue for China specifically, in light of recent developments.

The queue size question is complicated by spotty data and multiple stages. The following image illustrates three ways subdivide the EB-5 queue, when trying to calculate it. If you don’t have time to read the whole post, at least spend time gazing at this image, and see how it puts available queue data in context.

Perspective A looks at the queue in terms of stages between USCIS and Department of State.  Visa Control Office Chief Charles Oppenheim uses this perspective when making EB-5 wait time estimates. But Mr. Oppenheim calculates from two of the four variables in this picture. His wait time estimates count pending I-526 and pending applicants at the National Visa Center, and disregard the population segments for which he lacks data: people with approved I-526 but no visa application yet, and people with pending I-485. If those segments are small, then omitting them doesn’t matter much to wait time estimates. Historically, I-485 numbers have been indeed been very small (though Indians might change that going forward). The population of people between I-526 and visa application might be significant, particularly for China.

Perspective B reflects an alternate way to subdivide the EB-5 queue along the lines of before/after I-526 approval, and before/after visa availability. This perspective has come into focus because USCIS just started to publish data for a key variable: number of approved I-526 waiting for visa availability. I still can’t complete the calculation, because there’s only data for two of three segments for Perspective B. But the new data is tantalizing, because it overlaps with the major unknown from Perspective A.  The population of people with I-526 approval and no visa application on file yet (unknown) is a subset of the population of people with I-526 approval and waiting for visa availability (now reported).

So let’s look at these new data reports from USCIS, and think about what the numbers mean in context.  The following screen shots show reports as of October 2019 and April 2020.

Notes:

  • China report: In October 2019, there were 27,251 Chinese investors with I-526 approval and priority dates more recent than November 1, 2014 (the final action date in the November 2019 visa bulletin). In April 2020, there were 23,511 Chinese investors with I-526 approval and priority dates more recent than May 15, 2015 (the final action date in the April 2020 visa bulletin). Some inferences from these reports:
    • By moving the China final action date from November 2014 to May 2015 this year, Department of State apparently made a minimum of more 3,740 Chinese principal applicants eligible to claim visas. A decrease to the number of Chinese waiting for visa availability means an increase to the number of Chinese with visas available. (This doesn’t consider the number of visas actually issued, or the number of incoming I-526 approvals.)
    • USCIS reports 23,511 Chinese investors were awaiting visa availability as of April 2020. That number is principals only, not family members. Assuming a historical ratio of 2.7 visas per principal for China, that means about 23,511*2.7=63,889 future Chinese visa applicants at the stage of having I-526 approval, but not yet able to proceed to final action in the visa process. Charles Oppenheim reported that in June 2020, there were 42,575 EB-5 visa applications on file for China. The visa applications would include some people with visas available according to the visa bulletin Chart A, and some who are still awaiting final action. So the population represented by 42,575 overlaps with the population represented by 63,889. But the difference between 42,575 and 63,889 gives a hint about the number of Chinese with I-526 approval who may not have visa applications on file. In other words, a hint about the size of the population omitted from Department of State EB-5 queue estimates for China.
  • India report: In October 2019, there were 189 Indian investors with I-526 approval and priority dates more recent than December 8, 2017 (the final action date in the November 2019 visa bulletin). In April 2020, there were 51 Indian investors with I-526 approval and priority dates more recent than January 1, 2019 (the final action date in the April 2020 visa bulletin). Some inferences from these reports:
    • USCIS is slow. By April 2020, there apparently had been only 51 approvals for Indian I-526 filed in 2019 and later.
    • Department of State has apparently made India current for final action because it sees only a few Indians with approved I-526 waiting for visa availability. 51 principals would be about 124 visa applications, considering the typical applicant/principal ratio for India. Department of State still has over 200 visas available for Indians this year.
    • The number of Indian investors waiting for visa availability dropped between November 2019 and April 2020. That drop means an increase in the number of Indian investors who have visas immediately available to them (and suggests that there have been few incoming I-526 approvals on Indian petitions filed since December 2017).
  • Vietnam report: In October 2019, there were 491 Vietnamese investors with I-526 approval and priority dates more recent than November 15, 2016 (the final action date in the November 2019 visa bulletin). In April 2020, there were 443 Vietnamese investors with I-526 approval and priority dates more recent than February 8, 2017 (the final action date in the April 2020 visa bulletin). Some inferences from these reports:
    • The number of people waiting for visa availability is increased by new I-526 approvals, and decreased by visa bulletin movement that makes visas available to more people. For Vietnam, these two factors approximately balanced each other between November 2019 and April 2020, since the size of the waiting pool hardly changed. Either there were many I-526 approvals and many people became eligible for final action during that period, or few incoming I-526 approvals and few exits to the final action stage.
    • The numbers help explain why the Visa Bulletin has moved more slowly for Vietnam than for India. In April 2020, Department of State could see only 51 Indian investors ready with I-526 approval but as yet unable to claim visas, but 443 similarly-placed investors from Vietnam. 51 Indian investors plus family could all fit into this year’s visa limit, so the visa bulletin may as well become current to let them all through. By contrast, 443 Vietnamese investors would require more than one year’s visa quota, so the visa bulletin must continue to use final action dates to gradually channel that pool into the final action stage.

When confronted with a data point about the EB-5 visa queue, it’s necessary to put that data point in context, considering which segment of the queue it represents. The new USCIS report gives data for the segment of people with approved I-526 plus still waiting for visa availability. The total queue for EB-5 conditional residence includes two other segments: people with pending I-526, and people with approved I-526 plus visa availability. So according to USCIS data, the EB-5 queue of investors as of April 2020 equals about 17,500 I-526 pending plus 24,005 approved I-526 still waiting for visa availability plus an unknown number of approved I-526 now eligible for final action. As adjusted by the addition of family members, of course.

Perspective A and B are both limited by lack of data for a major population segement. I tend to favor Perspective C, which makes queue calculations simply from I-526 filing data, to avoid unknowns about where people currently fall in the process.

FY2020 Q2 EB-5 Form Processing Data

USCIS has published the All Forms report for FY2020 Q2 (January to March 2020), including entries for EB-5 forms I-526, I-829, and I-924. I look forward to these quarterly reports on the USCIS Immigration and Citizenship Data page because they provide information about EB-5 demand trends (receipts), processing trends (number of approvals and denials), and backlog trends (number of pending petitions).

FY2020 Q2 Data        
Form Receipts Approvals Denials Pending
I-526 21 714 190 16,633
I-829 604 730 57 10,309
I-924 48 10 50 137

IPO Chief Sarah Kendall had indicated at the March 2020 EB-5 stakeholder engagement that “With a lot of the infrastructure development now behind us, IPO is better situated to improve productivity. In fact, preliminary data for February shows a step in the right direction.” Now we can see that indeed, completion rates improved significantly. IPO processed almost twice as many I-526 and I-829 in FY2020 Q2 as in FY2020 Q1. That’s a most welcome update. The productivity in FY2020 Q2 is still three times lower than it was in 2018 with the same staff, so still not a recovery. But “a step in the right direction,” certainly. If IPO can manage more such steps in Q3 and Q4, I will start praising IPO Chief Sarah Kendall instead of pointing out inexcusable mismanagement of resources.

There were just over a handful of I-526 and I-924 receipts in January to March 2020 (21 I-526, and about 48 I-924). That’s no surprise. I would not expect many I-526 filings immediately after a deadline that nearly doubled the minimum investment amount. And I would not expect many I-924 filings considering that USCIS has essentially stopped processing I-924, as indicated by both the volume report (only 10 approvals in three months) and the processing times report (which gives an “estimated time range” for I-924 processing of 53 to 99 months).

Low receipt numbers are part of a trend throughout USCIS, and  help explain why the agency is now complaining to Congress about budget trouble. It turns out, measures to discourage immigration can result in falling revenue from immigrant fees. USCIS faces a reckoning from having operated on the Ponzi principle: depending on incoming fee revenue from new petitioners to pay for adjudicating a large backlog of forms whose fees were already spent without performance. I am heartened to see that at least in 2020, IPO did not use plummeting fees as an excuse to reduce productivity. In 2019, the coincidence of EB-5 receipt and adjudication numbers had me wondering whether IPO had decided to process only as many forms as justified by incoming fee revenue. I’m happy to see FY2020 Q2 firmly contradict that suspicion.

Denial rates remain comparatively high for Form I-526, but lower than in 2019. And it’s unclear whether IPO is actually denying more I-526 than usual, or just approving fewer than usual. Form I-924 denial rates remain astronomical – but no surprise, considering that most Form I-924 just request pre-approval for proposed investment projects. When I-924 processing times extend to four to eight years, the typical proposed project will no longer even exist by the time USCIS gets around to reviewing the application. Significant room for improvement in this area.

The charts below put FY2020 Q2 data in context of previous reports. I also included charts of recent processing times reports for reference and comparison. My timing consultation service remains available to people who want the numbers explained and interpreted as applied to their specific circumstances. So far I can only offer this service for I-526, because I have quite a bit of I-526 data available. I hope that I-829 processing will become more transparent in the future.

6/16 Oppenheim webinar updates (visa number usage and estimate, processing, retrogression)

I appreciated IIUSA’s June 16 webinar A Discussion With Charlie Oppenheim: Chief, Visa Control and Reporting Division, U.S. Department of State. IIUSA has a recording available for purchase, and it’s worth the price. Mr. Oppenheim spoke for 45 minutes and answered many questions in detail. Well-informed IIUSA panelists followed up with another 45 minutes of interesting and helpful discussion about how they are adjusting to current conditions.

Here are a few highlights from Mr. Oppenheim’s remarks. (6/22 UPDATE: See also the analysis published on the IIUSA blog by panelist Cletus Weber: “Highlights and Analysis of June 16, 2020 IIUSA Presentation on Visa Numbers, COVID-19, etc.”)

Consular processing and COVID-19

Department of State has been discussing when and how consulates can get back to full operations, but there are no decisions or forecasts at this point. It remains a “wait and see game.” Mr. Oppenheim expects that there will not be a “one size fits all” approach, but that different overseas posts will be coming back online at different times and with different capacities. The DOS website remains the best source for updates going forward (https://travel.state.gov/content/travel/en/News/visas-news.html and https://www.usembassy.gov/). Meanwhile, however, the National Visa Center remains operational. Applicants are encouraged to proceed as far as they can at NVC, so that they’ll be ready to go as soon as consulates can give interviews.

FY2020 Visa Usage

Mr. Oppenheim did not have exact numbers available, but estimated that over 4,500 EB-5 visas have been issued in FY2020 to date. (With 11,111 EB-5 visas authorized for this year, that could mean over 6,000 EB-5 visas would have to be issued in the next four months to maximize the FY2020 visa limit.) Mr. Oppenheim said that there is still potential for FY2020 numbers to be utilized if oversees posts open soon. USCIS does not allow Mr. Oppenheim to say how many I-485 are pending for EB-5, but he disclosed that they “don’t have a lot,” and that he’s “not sure there are enough I-485 out there to maximize visa usage this year.”

Based on the information Mr. Oppenheim provided, it appears likely that China will lose EB-5 visa numbers this year. China was expected to have over 5,000 EB-5 visas in FY2020, but in fact just over 1,000 visas were issued in Guangzhou before interviews stopped in February. Mr. Oppenheim said in the webinar that the July 2020 visa bulletin makes about 400 Chinese eligible for final action through adjustment of status, and about 3,000 Chinese eligible through consular processing. But he does not think Guangzhou could handle that many visa interviews this year even if it reopened tomorrow. (For reference, in the three years that I’ve logged monthly EB-5 visas from Guangzhou, the high was 781 visas issued in December 2017.)

Meanwhile, India has already used “well over 500 numbers, possibly 550 or more” for FY2020 (out of 778 visas expected under the quota), partly thanks to rapid movement of the visa bulletin. Mr. Oppenheim made India current for final action in the July 2020 visa bulletin, and expects India to remain current through the end of the fiscal year. (That must mean that he does not see many India I-485 pending or forthcoming, and/or is not optimistic about the number of visa interviews that can be scheduled in India this year.  If Mr. Oppenheim did foresee well over 250 Indians ready to claim a visa by September, then India would not be current for final action in the visa bulletin.)

Mr. Oppenheim did not mention how many visas have been issued to Vietnam so far in FY2020. He said that the visa bulletin dates for Vietnam would likely move “consistent with those moves through the end of the fiscal year” (referencing recent visa bulletin movement for Vietnam) but did not further explain that statement.

Mr. Oppenheim encouraged people to become documentarily qualified as soon as they can, so that they’ll be ready to go immediately when consulates can resume interviews. That means responding promptly when notified by NVC to assemble and submit documents. He said that overall, over half of people eligible to become documentarily qualified and pay fees have not done so. The more people are ready to claim a visa, the better chance of maximizing visa number usage this year.

FY2021 Visa Availability

On the bright side, EB-5 visa number loss in FY2020 is likely to be at least offset and possibly far exceeded by gain in numbers in FY2021. Mr. Oppenheim estimates that the EB visa limit, normally around 140,000, will be “at bare minimum” over 200,000 in in FY2021, and probably “well in excess” of 200,000. EB-5 gets 7.1% of total EB visas, so that means the EB-5 visa limit in FY2021 will at least be over 14,200 – and probably significantly over. This will happen because unused family-based visas from one year roll over into employment-based categories the next year. And consulate closures mean that many family-based visa numbers are going unused this year. I have a separate post coming on this topic, to explain the minimum and maximum benefit to EB-5 from unused FB visas in FY2020, and the potential impact on EB-5 wait times.

Mr. Oppenheim confirmed that the offset from the Chinese Student Protection Act will be completely satisfied in FY2020. So in FY2021, China will have the same EB-5 visa rights as other countries – i.e. 7% of the total limit, plus access to leftover visas according to priority date order. Since the number of leftover visas in FY2021 is likely to be very large, and Chinese have the oldest priority dates, FY2021 should be a good year for China EB-5.

Visa Bulletin Movement and Retrogression

Mr. Oppenheim spoke extensively about the thinking behind visa bulletin movement, and surprised me by indicating that he does not expect EB-5 retrogression. I haven’t figured out how this is possible for India in particular, considering the backlog and how visa bulletin dates have jumped in 2020, but Mr. Oppenheim made the statements strongly and repeatedly.  He described the visa bulletin date movements this year as “measured,” “not just moved for the sake of movement,” and “trying to avoid retrogression.” He aims to avoid a situation where people get qualified only to see time-sensitive documents expire. When specifically pressed on India, he said that “I don’t think that India is facing a retrogression in the foreseeable future” and “I think the previous wait time [estimate from October 2019] has dropped significantly for somebody that would be filing today.” This considers the possibility that a number of Indian applicants on file at NVC might be able to receive visas this year, and the increased visa quota next year.

I’m still trying to think this through, considering what we’ve been previously told about backlogs. But I credit Mr. Oppenheim’s predictions, because he has much more data than we do. He clarified that USCIS and IPO report to him monthly on processing status, including how many petitions they have at various stages of processing, and how many they are working on. (Why, IPO, do you persistently refuse to provide such reports to the public, even as you claim to stand for integrity?) Meanwhile, the National Visa Center gives monthly updates on the number of applicants who have become qualified and could potentially be scheduled for interviews.

Mr. Oppenheim acknowledged the remote possibility that all countries could become current for EB-5 final action in the visa bulletin in FY2021, for a period of time. This could happen in the first half of FY2021, if consulates remain closed into the new fiscal year, if there were a sufficient number of status adjustment cases to justify the movement, and if the system had the capacity to accommodate the resulting demand.

Other

Mr. Oppenheim clarified that absent change to U.S. immigration law, Hong Kong will continue to be treated as a separate country for the purpose of U.S. visa issuance.

Mr. Oppenheim conveyed mixed messages about IPO productivity. IPO itself has not yet published any processing data for 2020, so we’re left to guess whether their current I-526 completion rates are more like 2019 (horrible) or 2018 (great). Mr. Oppenheim, who does have recent information on volume of I-526 approvals, said that IPO has been “deciding petitions at a rapid pace” and “forwarding petitions at high volume.” He particularly noted a large number of I-526 approvals for Chinese – which must mean that many China I-526 were assigned for adjudication before the new visa availability approach took effect as of April 1, 2020. That all sounds promising. On the other hand, Mr. Oppenheim provided updated information about the NVC backlog that does not clearly reflect many people advancing from I-526 to the visa stage. The following chart compares the number of cases at the National Visa Center between October 1, 2019 and June 1, 2020.

Country Number of EB-5 applicants at NVC as of 10/1/2019 Number of EB-5 applicants at NVC as of 6/1/2020 Difference
Brazil 212 204 (8)
China Mainland 35,264 42,575 7,311
India 607 677 70
South Korea 221 193 (28)
China Taiwan 101 112 11
Vietnam 1,771 1,550 (221)
Rest of World 1,011 1,070 59
Grand Total 39,187 46,381 7,194
Total for countries other than China 3,923 3,806 (117)

The numbers show that only China has seen a significant net increase this fiscal year in EB-5 visa applicants at NVC. Mr. Oppenheim credited this increase to IPO productivity. However, the increase could also be explained by the fact that the visa bulletin has moved to allow many more Chinese to file documents, even as the consulate has not been issuing visas. For the rest of the world, incoming visa applicants have not been sufficient even to counterbalance the few EB-5 visas issued this year. If IPO were doing its job to adjudicate petitions, we should see more visa applicants. There is a lag between I-526 approval and becoming qualified at NVC, and some approved I-526 go on to status adjustment rather than to NVC. So there’s room for hope that IPO has indeed performed well recently, and I-526 approval numbers just aren’t reflected yet in visa applicant numbers. But Mr. Oppenheim hedged about the amount of visa demand he expected to make it out of USCIS. “I’ve had to temper my expectations with the immigration service because they are under certain processing constraints.”

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.

 

 

Interpreting the Visa Bulletin

The monthly visa bulletin guides who can apply for and receive visas.  The visa bulletin can be confusing, because it gives information about sequence for a process that is not strictly sequential. It’s easy to misinterpret the swift movement of EB-5 final action dates, for example. This post discusses the June 2020 visa bulletin and then, as an alternate/additional approach to the question, discusses how priority does and does not work in context of a couple simplified analogies.

Visa Bulletin Example

Consider the June 2020 Visa Bulletin Chart A Final Action Dates.

Interpretation

  • EB-5 is the 5th Employment-based preference. There are separate rows for non-regional center (direct) and regional center EB-5, because these categories get treated differently in case the regional center program authorization lapses. Otherwise, these two rows will be identical to each other each month.
  • The letter “C” means that visa numbers are currently authorized for issuance to all qualified applicants, regardless of when they filed petitions. For EB-5, all countries except China, Vietnam, and India are current for now.
  • The 15Jul15 final action date for China EB-5 means that qualified China-born visa applicants who filed I-526 BEFORE (but not on or after) July 15, 2015 may now proceed to finish the process to get conditional green cards. The 10Jan20 final action date for India EB-5 means that qualified India-born visa applicants who filed I-526 before January 10, 2020 may now move forward to receive visas. The final action dates mark the cut-off for visa availability.
  • The final action date indicates the qualified applicants who MAY move forward – not necessarily those who CAN move forward.  As it happens, all applicants outside the U.S., regardless of priority date and qualification, are currently prevented from getting visas by the fact that consulates are sheltering in place and not giving visa interviews.  At the moment, the population of people who CAN move forward is practically limited to qualified applicants able to finish the visa process through adjustment of status in the U.S. Department of State would take this practical limitation into account, when defining the final action date-barrier for visa availability. The dates in the June 2020 visa bulletin presumably do not account for the inventory of visa applicants pending at the National Visa Center, since those applicants aren’t practically able to demand visas in June. When it’s possible to temporarily discount many pending applicants, it’s possible to move the final action date quickly to accommodate the few applicants who are practically able to claim visas.
  • Even without a pandemic, the final action date does not mean that everyone who filed I-526 before that date can proceed to get visas now. The key word is “qualified” applicants – meaning people who already have I-526 approval and have active and complete visa applications on file. If someone from India filed I-526 in 2019, that person can only proceed to final action in June 2020 if qualified at the visa stage. If still waiting for I-526 approval or visa document review, that person is not eligible yet to claim a visa regardless of the visa bulletin.
  • The final action date in the visa bulletin does not mean that most people who filed petitions before that date already have visas. Department of State issues visas in order by priority date, but processing at USCIS may not be sequential. We know that hundreds of Indians with 2018 and 2017 priority dates (and even some 2016 PD) are still waiting at USCIS for I-526 approval. So when the Visa Bulletin has a January 1, 2020 final action date for India, that can’t mean that most India priority dates from 2019 and earlier are already through the system. It just means that earlier priority dates aren’t yet able to claim visas (thanks, USCIS processing delays and COVID-19), and thus had to be temporarily skipped over for visa issuance. When those earlier PD do reach the point of being able to claim visas, the visa bulletin final action date will need to retrogress (move back in time) to accommodate them.  By contrast, the numbers suggest that few I-526 filed before July 2015 should still be pending at USCIS. So the July 2015 final action date for China could indeed reflect the actual progress of China visa issuance, not just the accident of who’s currently positioned to claim a visa. Knowing who’s in line at different stages, I’m certain that the India final action date will retrogress significantly in future visa bulletins. It’s possible that the China and Vietnam date movement might just slow down rather than moving back in time.

Hypothetical Examples

Basically, the key to understanding the visa bulletin is understanding the extent to which the EB-5 process is and is not sequential by priority date. To that end, I’ve made a couple simplified hypothetical scenarios, with pictures. The first scenario reflects how some people assume the EB-5 process works. The second scenario is more analogous to how it really works.

In hypothetical Scenario A:

  • Each person receives a priority number when entering the “File Petition” door.
  • People wait in line in order of priority number, and proceed in this order to and through the “Get visa” door.
  • Three people per month are allowed go through the Get Visa door.
  • The bulletin over the Get Visa door is updated monthly to post the priority number of the first person who can’t fit through the door that month.
  • When the bulletin posts #4, that means number 1, 2, and 3 may go through the Get Visa door.
  • Considering the queue and how it moves sequentially at a rate of three/month, we can confidently predict the following future bulletin updates: Month 2: #7, Month 3: #10, Month 4: #13.
  • The person with #9 can confidently predict that his turn to get a visa will come no earlier and no later than 9/3=3 months.
  • Scenario A shows a process that’s predictable because strictly sequential from beginning to end. In that sense, it differs from the EB-5 process.

In hypothetical Scenario B:

  • The same rules apply as in Scenario A, except that the process includes multiple stages, and only strictly organized by priority number in the last stage.
  • The queue is mixed in Scenario B due to the first stage, which does not necessarily respect priority numbers. Some petitions are unreasonably delayed here, while others were apparently advanced out-of-order from stage one to the later stage.
  • In Scenario B, the bulletin over the Get Visa door only considers people in the final stage – in a position to claim visas — when posting who gets through that month.
  • The bulletin in Scenario B currently posts “10,” because 10 happens to be the first eligible number not possible to accommodate under the three/month limit. Posting #10 allows eligible 1, 3, and 6 through the green door. It does not allow 2, 4, 5, 7, 8, or 9 through the door, because those numbers happen to be still stuck at ineligible stages. (If those numbers had all been in the eligible stage, then the bulletin would’ve posted #4.). If it happens that 2, 4, 5, 7, and 8 reach the final stage by next month, then the next month’s bulletin will “retrogress” to #7, the earliest number not possible to accommodate under the three/month limit.
  • The person holding #9 has a complex visa wait time calculation. His future turn at the Get Visa door isn’t simply a function of being #9 in queue that moves at a rate of three per month, since the first stage mixed the queue. His turn isn’t now, despite the #10 posted in the current bulletin, because he’s not yet at the stage of being able to claim a visa. It may or may not be his turn once he does reach the eligible visa stage: it depends on who’s at various stages, and when they are able to reach the final stage. We can see that six other people with lower numbers are still in the queue as well. They’re not yet recognized by the bulletin since they’re also not eligible yet, but will be eventually.
  • The priority numbers create order within the visa stage, but not necessarily before that. The more people are concentrated in the final stage, the more order and predictability in the process. The more people are stuck in the first stage, the more potential for disorder and unpredictability.
  • Scenario B is relatively comparable to how priority dates function in the EB-5 process.

Bonus Features

For those about to make a comment asking about visa timing for a specific situation, please see my timing consultation page. Timing estimates are tough, as evident in this post. My consultations are rooted in my attempt to quantify (by piecing together sporadic reports from USCIS and Department of State) the current breakdown of the EB-5 backlog by country, priority date, and process stage. Having this picture in view, we can think about the timing outlook for someone at a given place in that backlog.

The following images show sides from Charles Oppenheim’s visa presentation at the 2018 AILA & IIUSA EB-5 Industry Forum October 29–30, 2018 Chicago, IL. These slides illustrate how EB-5 cases can get mixed up in practice, instead of proceeding in date order from the I-526 stage to the visa stages.

And finally, a log of visa bulletin updates so far in FY2020, illustrating how EB-5 dates have moved this year.

EB-5 Impact of COVID-19 (processing, eligibility, visa numbers)

EB-5 Processing at USCIS under COVID-19

USCIS has continued to process Form I-526, I-485, and I-829 during the pandemic, since this processing generally does not involve public contact. Domestic USCIS offices that were closed to the public are now slated to re-open on or after June 4, and USCIS continues to offer deadline extensions for RFE and NOID notices issued between March 1 and July 1 (per the latest update to the USCIS Response to COVID-19 page). No EB-5 form processing data has been published yet for 2020, but individual reports suggest a steady flow of EB-5 decisions throughout 2020.

Possibly the most important COVID-19 impact for EB-5 processing involves lawyers. In 2019, the Investor Program Office at USCIS simply dropped the ball on adjudications, becoming FOUR TIMES less productive than previous years, and they got away with it. But in 2020, EB-5 lawyers have little to do and few ways to make money except to convince EB-5 investors to file Mandamus and APA actions to sue USCIS to do its job. With unreasonable delay being so blatant in EB-5, especially in the wake of the 2019 processing meltdown, USCIS does not have a good defense against these suits except to finally adjudicate petitions. The logical defensive strategy for IPO now would be to buckle down and work as hard as they can to clear the delayed backlog that’s inviting and justifying the blizzard of lawsuits. And that may indeed be what’s happening. In the meantime, I have an article forthcoming on the USCIS processing times reports, and my Timing Estimates service is up.

COVID-19 and EB-5 Eligibility

A pandemic presents obvious challenges for immigration that depends on sustained investment and job creation. I’ll write more about this as time permits, but a few timely articles:

COVID-19 and EB-5 Visa Availability

The pandemic has effectively stopped EB-5 visas from being issued through consular processing. Department of State cancelled “all routine immigrant and nonimmigrant visa appointments as of March 20, 2020,” and the DOS News page has yet to announce any timeline to resume routine visa services worldwide. Individual consulates also make no promises. The consulate in Guangzhou is silent regarding services. The consulate in Ho Chi Minh City announced May 26 that it will resume some regular services but for American citizens only starting June 1, with no promise for when visa appointments will resume. As of May 25, the embassy and consulates in India are still indefinitely closed to the public for routine consular services. There’s no executive order blocking EB-5 visas, but the lack of visa appointments has created a barrier in practice.

In October 2019, Department of State announced that it had 11,112 EB-5 visas available for FY2020, of which India and Vietnam could expect 778 visas each, and an estimated 5,270 could be leftover for China. DOS normally issues available visas gradually over the course of the year, about a quarter per quarter. But the actual pace of visa issuance has been slow with consulate closures, according to monthly reports of visas issued abroad.

What will happen to the EB-5 visa numbers currently not being issued at consulates? A few possibilities:

  1. Visa numbers can go to applicants who are already in the U.S. and able to complete the process through I-485 adjustment of status. We don’t know how many applicants are currently in this category, because USCIS stopped publishing data on number of pending I-485. However, historically few EB-5 visas have been claimed through status adjustment. In FY2019, the figures for EB-5 adjustment of status were: China, 433 visas; India, 257 visas; Vietnam, 52 visas. (And in FY2018: China, 481; India, 191; Vietnam, 35.) The Visa Bulletin provides one clue to visa demand. If Department of State can see many people ready to claim a visa, then the Visa Bulletin Final Action Date advances slowly to regulate that demand. If few people are in a position to claim visas, then the FAD must advance rapidly to maximize visa issuance. In 2020, the FAD has advanced extremely rapidly for India, and somewhat rapidly for Vietnam and China. This suggests that the I-485 backlog is small and/or mainly composed of recent priority dates.
  2. Consulates might resume routine visa services soon enough, and work hard enough scheduling appointments, that they can catch up with visa issuance before FY2020 ends on September 30, 2020.
  3. If consulates aren’t able to resume visa services soon and there aren’t enough EB-5 applicants in the U.S., then DOS might not manage to issue 11,112 EB-5 visas in FY2020. Any unused visas would then roll over to EB-1 next year. (That loss might be counterbalanced by the roll-over to EB categories of family-based visas that couldn’t be issued in FY2020.)

IIUSA Webinar with Charles Oppenheim on 6/16

In recent years, IIUSA Conferences in the Spring and Fall have featured presentations from Charlie Oppenheim, Chief of the Visa Control and Reporting Division at the U.S. Department of State. I look forward to these presentations for valuable updates on number of EB-5 visas issued, the current size of the backlog, and updated estimates for EB-5 visa wait times and visa bulletin movement.

This pandemic Spring, IIUSA can’t hold a conference, consulates have paused visa services, the Visa Bulletin is jumping wildly to accommodate the few EB-5 applicants lucky to be in a position to claim visas, and visa availability has become a wide-open question. In the midst of all this, Mr. Oppenheim has still kindly consented to join a live webinar with IIUSA to address industry questions about EB-5 visa availability.  Register here for the webinar on June 16 at 1 PM EST. Mr. Oppenheim will only be able to discuss visa availability in general terms, rather then providing data and predictions, because even Department of State can’t say at this point what is happening and will happen with EB-5 visa numbers and visa processing. But I appreciate the willingness to engage with the public, and share as much as possible.

 

FY2020 Q1 EB-5 Processing Statistics

The USCIS Immigration & Citizenship Data page has posted the long-awaited EB-5 form data for October to December 2019 (FY2020 Q1).

The main questions in my mind before I saw the data:

  • Was there really a massive I-526 surge ahead of the November 2019 deadline to increase the investment amount?
  • Did IPO show any trend toward improved productivity?

I made my data summary charts go back to 2015 this time, to put recent trends in context. As the charts illustrate, there was a large but not historically large surge in I-526 receipts last quarter.  So far from clocking any productivity improvement, IPO once again broke its record for fewest adjudications of all time. Clearly, adjudication was not among IPO’s priorities in 2019.  IPO did not even accomplish the minimum of adjudicating sufficient I-526 over the past four quarters to claim a full annual visa quota. I-924 adjudications remain near 0, while I-829 adjudications continue at a steady low level. Now we’re left to hope for FY2020 Q2 data, which IPO Chief Sarah Kendall promised us last month would show some improvement — improvement we’ve been seeing anecdotally. To quote again from Kendall’s remarks about new processing procedures:

USCIS leadership views these initiatives as absolutely vital to the success of the EB-5 program. We acknowledge that case completion rates have decreased partly because of these activities, and we understand the concerns that raises for our stakeholders. With a lot of the infrastructure development now behind us, IPO is better situated to improve productivity. In fact, preliminary data for February shows a step in the right direction. The USCIS Office of Performance and Quality anticipates publishing new data in the coming month.

This quarter’s data release included a new table that I’ll analyze separately in another post.




Complete I-526 and I-829 data for FY2019 Q1, by country

Buried deep in the Electronic Reading Room, where USCIS probably hoped no one would ever find them, are two Freedom of Information Act files that individually record every I-526 and I-829 receipt and adjudication from October to December 2018 (FY2019 Q1).

Being diligent, I discovered the files, and immediately converted them to Excel and got to work with pivot tables. This data allows fact-based answers, at least for one quarter, to questions generally subject to rumor and speculation.

  • How do USCIS processing times reports relate to actual processing times?
  • Have petition processing times differed by country?
  • Do approval rates differ by country?
  • From which countries are I-526 receipts coming?

Before considering answers to these questions from FY2019 Q1 data, consider FY2019 Q1 in context.

IPO apparently made dramatic processing changes between 2018 and 2019, and FY2019 Q1 has one foot on either side of that change.  So what happened in FY2019 Q1 isn’t necessarily representative of what came before or after. But for what it’s worth, here’s analysis of exactly what happened in that one quarter.

  • Processing Times Questions
    • Back in December 2018, the USCIS processing times report gave an “Estimated Time Range” of 20.5-26 months for I-526, and 30-39 months for I-829.  USCIS claims that in this range, “The first number is the time it takes to complete 50% of cases (the median). The second number is the time it takes to complete 93% of cases.” Presumably, these percentages get calculated from data for the previous month or two.
    • In reality, according to FY2019 Q1 data reports, 64% of I-526 adjudicated in October-November 2018 had been pending less than 20.5 months. 79% of I-829 adjudicated in October-November 2018 had been pending less than 27.5 months. Meanwhile, 16% of I-526 and 14% of I-829 adjudicated had been pending longer than the outer limit of the reported estimated time range.
    • In FY2019 Q1, the actual processing times for adjudicated I-526 and I-829 were quite a bit lower on average than the processing times report would suggest, and also had more deviation from average. The link between the contemporary processing times report and actual performance is not clear. Generally, the reality was somewhat better than the report.
    • The average I-526 approved in FY2019 Q1 had been pending 17.5 months, while the average approved I-829 had been pending 26 months.
  • Country Questions
    • Data on I-526 adjudications for FY2019 Q1 shows differences by country, but not enough to suggest that USCIS was already using a visa availability approach last year.
    • The average processing time for Chinese I-526 approved in FY2019 Q1 was just two months longer than the average for other countries.
    • The average processing time for India I-526 approved in FY2019 Q1 was almost five months shorter than the worldwide average, likely due the influence of expedite requests. Indians accounted for 30 of the 36 I-526 processed in FY2019 Q1 within six months of filing.
    • Indians accounted for a majority (31%) of the I-526 filed in FY2019 Q1, followed by China (15%), Vietnam (11%), and South Korea (6%). Indians filed enough I-526 just in Q1 to use up over a year and half of the EB-5 visa quota for India.
    • Chinese, as might be expected considering past demand trends, accounted for the majority of I-829 filed (81%) and adjudicated (81%) in FY2019 Q1.
    • The I-526 approval rate in FY2019 Q1 was over 90% for most countries, but just 81% for China. I suspect this is due to USCIS’s surreptitious policy change regarding currency swaps, which particularly affects China.
  • Other Notes:
    • The records show that USCIS codes at least two kinds of I-526 denial: Denied Fraud, and Denied Others. In FY2019 Q1, only one petition was denied due to fraud.
    • USCIS may not have its best and brightest on data entry and record-keeping. The “country” column for I-526 receipts, for example, includes 20 petitions coded as coming from Falkland Islands (presumably standing for Great Britain, where DOS categorizes Falkland Islands), 13 from “Unknown,” 8 from USSR, and 1 from United States. Also the totals for the quarter do not exactly match the official report of I-526 and I-829 data for FY2019 Q1.  (For example, 1,808 I-526 receipts in the official quarterly report; 1,743 I-526 receipts recorded in this detailed report.) However, please do not be shy USCIS: publishing slightly inaccurate records is a thousand times better than hiding data, leaving the industry to rumor and speculation.
    • It’s always been clear that EB-5 processing is not simply First-In-First-Out. The USCIS Estimated Time Range for processing would obviously not be so broad under a FIFO system, and the range in actual processing times is even broader. But what explains why some petitions have been processed years earlier or later than others? One factor that’s obvious in the data — denial decisions go “out” much later than approvals.
    • To repeat: petition processing has not been strictly FIFO.  This is clear, looking at the dates of petitions that received decisions in this one quarter. The PDF files linked above record individual decisions. If the FY2019 Q1 record shows that one I-526 with X filing date got approved or denied, does that mean that every I-526 with X filing date has been adjudicated? No.

And now some charts based on the FY2019 Q1 data.

I’m compiling materials for a new data room, and hope to launch a new processing time estimate service later this month following the EB-5 stakeholder meeting with USCIS.

And a few legislative notes. Senator Mike Lee continues to work on the S.386 Fairness for Highskilled Immigrants Act to eliminate country caps and reorganize the order of EB visas. Could the bill that’s been on the table since 2011 actually move in 2020? I doubt, but Lee is pushing hard.  The competitor RELIEF Act has just a few sponsors so far.

Meanwhile, bright-eyed representatives Cardenas (D-CA) and Stivers (R-OH) have introduced H.R. 5971 Case Backlog and Transparency Act of 2020. This bill refers back to P.L. 106-313, which was passed in the year 2000 with this beautiful sentence in section 202: “It is the sense of Congress that the processing of an immigration benefit application should be completed not later than 180 days after the initial filing of the application.” (p. 12) H.R. 5971 proposes to revive that deadline, and require DHS to report in detail on backlog reduction efforts. Lovely! If only the current Congress could agree that immigration benefit applications should be processed efficiently.

And as always, my PayPal link is open. If my work to find and analyze data is helpful and time-saving for you, consider making a contribution to support the work. And thanks to my past contributors!

FY2019 EB-5 Visa Stats by Country

The Report of the Visa Office 2019 has been published, with EB-5 visa statistics in Table VI Part IV (visas issued through consular processing) and Table V Part 3 (consular processing plus I-485 status adjustment).  The statistics reflect number of green cards issued for conditional permanent residence by country of origin.

In a sense this is old news – not only because Charles Oppenheim summarized this data at the IIUSA conference last October, but also because EB-5 visas issued in FY2019 reflect EB-5 investment decisions made at least two years ago (for most countries, considering I-526 processing times) or five years ago (for China, considering the visa bulletin). To understand current EB-5 demand, we need per-country I-526 data from the beginning of the process. But USCIS resists disclosing such I-526 data, so we make do with visa statistics that reflect usage midway through the EB-5 process.

A few questions that occur to me, as I look at visa statistics:

  • How close did Department of State get to its goal of issuing the total visas available for the year under numerical limits?
  • How are EB-5 applicants divided between people living abroad and people already in the US? What populations in the United States are using EB-5 to adjust status?
  • Beyond the few top countries, how is the EB-5 market diversifying or concentrating?
  • How many EB-5 visas are actually going to investors, and how many to spouses and children?
  • Which data points deserve a film contract?

The EB-5 numerical limit is not a fixed number, but 7.1% of a total number of EB visas that varies each year, further divided by the 7% per-country cap. The EB numerical limit for FY19 was 141,918 visas, which put the EB-5 share for FY19 at 10,076 visas, and the individual country share at 705 visas. In practice, it’s not possible to hit the targets exactly. In FY2019, DOS unluckily undershot the worldwide target (issuing only 9,478 total EB-5 visas) but slightly overshot the per-country target for India and Vietnam (which each ended up with more than 705 visas).  The worldwide visa numbers don’t reflect lack of demand (there were plenty of visa applications left pending at the end of the year), but complications in the process (p. 2-3 of this article explains some reasons).

US entrepreneurs promoting EB-5 investments may wonder: should I buy plane tickets, or can I find potential EB-5 investors in my own back yard? Visa statistics for consular processing vs adjustment of status can help answer this question. The data shows, for example, that nearly half of South Americans who received EB-5 visas in FY19 were not living in the South America, but already residing in the US on different visas. Likewise 31% of the EB-5 visas to Europeans, and 34% of those to Indians, went through status adjustment in the U.S. By contrast, 90% of EB-5 visas issued to China-born people in FY19 went through consular processing. (But China being China, even the 10% from status adjustment in the U.S. is still a large number: 433 people). Africans got a record (for Africa) 334 visas in FY2019, most of them issued abroad.

The Report of the Visa Office does not itemize visas by principals and derivatives, but the DHS Yearbook of Immigration Statistics does. I’ve added a pie chart below with the most recent data (2018) as a reminder that the 10,000 or so annual EB-5 visas do not – as Congress intended – support 10,000 investments in the US economy, or 100,000 jobs. Because Department of State believes that it needs to fit whole families into the numerical limit, the EB-5 quota is only able to incentivize around 3,300 investments annually. In FY2018, just 3,363 EB-5 visas went to principals i.e. EB-5 investors. The majority of EB-5 visas (42%) went to children. (Interestingly, nearly a third of EB-5 applicants in FY18 apparently immigrated without spouses.)

Back to the Report of the Visa Office, FY2019 was similar to FY2018 in terms of country diversification, with similar regional distribution and number of countries contributing to the visa total.  Growing diversification was more evident between FY17 and FY18. The number of visas leftover for Chinese dropped significantly between FY17 (about 7,500) and FY18 (about 4,500), but remained about the same in FY19 (about 4,300). (That could change in FY21, if the visa availability approach succeeds in pushing a larger volume of rest-of-world applicants out of I-526 to the visa stage.)

I would like to see the film about the high-net-worth Chadians and North Koreans who managed to connect with EB-5 projects, document source of funds, and secure EB-5 visas in FY2019. And all those ones promise poignant stories – I’m curious about that one Croat, the one Kazahk, the one Surinamese, and the lone Kiwi who immigrated through EB-5 in FY19.

A few charts to highlight features of interest to me.


And finally, a reminder that visas can only be issued to people with active visa applications. The March 2020 visa bulletin ends with a reminder to Chinese with I-526 approval to get documentarily qualified at NVC, or risk losing place in line. The China Final Action date just jumped five months — not due to lack of Chinese with approved I-526, but due to lack of Chinese eligible to be called for a visa interview.

E. EMPLOYMENT-BASED FIFTH PREFERENCE VISA AVAILABILTY (note from March 2020 visa bulletin)
There has been a very rapid advancement of the China-mainland born fifth preference final action date for the month of March. This action has been taken in an effort to generate an increased level of demand. Despite the large amount of registered China fifth preference demand, currently there are not enough applicants who are actively pursuing final action on their case to fully utilize the amount of numbers which are expected to be available under the annual limit.
Once large numbers of applicants do begin to have their cases brought to final action, some type of corrective action may be required to control number use within the annual limit. It is important to remember that applicants who are entitled to immigrant status become documentarily qualified, and potentially eligible for interview, at their own initiative and convenience. By no means has every applicant with a priority date earlier than a prevailing final action date been processed for final visa action.

This brochure from DOS gives an overview of the NVC process and what it means to be documentarily qualified.

I-526 backlog by country and priority date

Last week USCIS announced a process change for I-526 adjudications, replacing the (nominal) first-in-first-out approach with a “visa availability approach” that gives priority to petitioners from countries who have visas immediately available, or soon available. This replaces a system that depends on I-526 priority dates with a system that depends on priority date plus country of origin.

To interpret the change, we need to know the composition of the I-526 backlog, by priority date and country of origin. IPO can, at any time, print out and publish a report of this data. IPO did this once, in October 2018, then deleted the report. IPO now refuses to disclose current data for the currently-pending I-526 itemized by petitioner country and priority date month/year. Why? There are obvious wicked reasons – intent to obscure processing, or gratuitous naysaying – and no good reason that I can think of. Please, reconsider, IPO.

In absence of answers direct from USCIS, here’s my estimate of the I-526 inventory as of October 1, 2019. (I can’t guess for a more recent date, not knowing anything about I-526 receipt or adjudication numbers since October.)

The total inventory estimate (Column A) should be nearly accurate, because it’s based on a Department of State applicant estimate that we can deconstruct into a pending petition estimate, with a few given clues. (Calculation and sources at the base of this post.)

Columns B, C, and D would be nearly accurate, if processing since October 2018 had been FIFO as USCIS claims. (According to the October 2018 pending petition inventory report, 4,630 petitions had priority dates earlier than March 2017, and 9,583 petitions had priority dates from March 2017 to September 2018. USCIS processed 4,673 I-526 from October 2018 to September 2019. So if USCIS processed the oldest petitions first, the remaining inventory as of October 1, 2019 should have no pending I-526 left from before March 2017, while all priority dates since March 2017 would still be pending. Reality contradicts the FIFO theory, judging by the I-526 processing times report and individual experience.  But I leave the theoretical calculation in Table II as a reference, until USCIS finally consents to give us the real numbers.)

Look at my estimated I-526 inventory above, and imagine the difference a “visa availability approach” will make once it starts being implemented in April.

If IPO is guided by the current Visa Bulletin Chart B (where China is in 2014, and all other countries current), then it would take only China I-526 off the table for now. That would cut about 6,000 petitions from the current workload.  At the other extreme, If IPO is guided by Charles’ Oppenheim’s long-range estimates for visa availability, then it could remove the following from the table for now: China priority dates from 2015 on; Vietnam priority dates from 2017 on; India priority dates from 2018 on; and South Korea, Taiwan, and Brazil priority dates from 2019 on. That would cut at least 9,800 petitions from the active inventory.

The impact on I-526 wait times, for majority and minority countries, will depend on how IPO interprets visa availability – but even more, on IPO’s decisions about volume of adjudications. If IPO exercises its ability (proven in 2018) to adjudicate over 15,000 I-526 per year, then minority-country I-526 can all be processed in a few months, and majority country petitions not far behind. But last year, IPO approved only 3,660 I-526. If that low performance level continues into the future, then IPO could use up its entire capacity for the year just working on minority-country petitions. That would significantly delay majority country-petitions. (Perhaps not coincidentally, 3,660 is almost exactly the minimum number of annual I-526 approvals needed to produce enough applicants for the 10,000 annual visa quota, given the historical average visas per principal. I hope IPO isn’t taking the visa quota as an excuse to shirk I-526 adjudication responsibilities, take resources away from I-526, and let the backlog of fee-paid petitions gather dust as long as can possibly be excused by visa waits.)

Theoretically, the I-526 wait time ( w ) for a petition equals inventory (i) of petitions with priority to get adjudicated earlier than that petition, divided by number of petitions that can get adjudicated per period (t). w=i/t  The visa availability approach changes i – making it smaller for minority countries and larger for majority countries, with obvious results for w. For what it’s worth, I can calculate i for different countries and priority dates, and quantify the effect of FIFO vs. visa availability approach on i.  But my EB-5 timing estimates page is still empty for the moment, as I don’t know what to make of t. Was last year’s very low volume an aberration, as IPO Chief Sarah Kendall suggested when asked about it last year, or a new strategy to be continued? I hope we can get some sense at the stakeholder meeting next month.

And finally FYI, the detail of my I-526 inventory estimate above. The sources: Department of State report of EB-5 Applicants with Petitions on file at NVC and Estimated USCIS Applicant Data as of 10/1/2019 (slide 8 in this IIUSA presentation), Department of State report of average percentage of EB-5 principal investors in visa applications (slide 15 in this IIUSA presentation), USCIS’s FY2019 quarterly I-526 data report (linked here), and the log of pending petitions as of October 2018 (my version of the file formerly posted on the USCIS website saved here).



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2/2020 Visa Bulletin India FAD

The February 2020 Visa Bulletin has a Final Action Date of September 1, 2018 for India.  This represents another dramatic jump (with the January visa bulletin having a May 1, 2018 final action date). I previously wrote about overall EB-5 visa timing in 2020. This post attempts additional clarifications specific to EB-5 petitioners and applicants born in India.

February’s visa bulletin does mean:

  • that visas can be issued in February to qualified Indian applicants with priority dates before 9/1/2018 (Qualified applicants are at the visa stage, having already received I-526 approval)
  • that there are few Indian applicants at the visa stage (A note at the end of the January 2020 visa bulletin explains that the India final action date will proceed rapidly in 2020 so long as demand is low — i.e. so long as few Indians are in a position to apply for a visa)

February’s visa bulletin does not mean:

  • that India demand is low at the I-526 stage
  • that visas are available to people with pre-9/1/2018 priority dates whose I-526 are still pending
  • that USCIS has processed or will soon process most India I-526 with pre-9/1/2018 priority dates
  • that Department of State has already finished issuing visas to all Indians with priority dates before May 1, 2018 (the final action date in January 2020’s visa bulletin)
  • that having reached September 2018, India’s final action date will continue to advance in the future, and will not turn back

In fact, USCIS indicates that it is currently working on I-526 filed 32.5 to 49.5 months ago (i.e. 2015 to 2017 priority dates). I-526 adjudications are not guided by the visa bulletin. Ideally, USCIS would process petitions in the order received, so that people reached the visa stage more or less in order by priority date. But evidently, this is not the case. Some 2018 priority dates are getting visas now even as some earlier priority dates remain at the I-526 stage.

We know that Indians filed at least 525 I-526 petitions from January through August 2018. (That’s how many I-526 were pending from those priority dates as of October 2018, when USCIS published this I526list report.) Over 500 I-526 would conservatively result in over 1,000 visa applications. Over 1,000 visas would take over one year to issue. So when the Visa Bulletin jumps from January to September 2018 in just three months, it’s evident that most people with those priority dates just haven’t even reached the visa stage. If they had, the visa bulletin would slow down to the time needed to issue over 1,000 visas.  And recall the 781 Indian I-526 with pre-2018 priority dates that were still pending at USCIS at the end of 2018 — some of those must still be in the system as well.

For Indians with priority dates before 2019, I suggest gazing at the I526list report from October 2018. Add up the number of pending I-526 with priority dates before yours. Estimate the number of visa applicants associated with those I-526. Subtract the number who could possibly have received visas since then, considering the number of I-526 adjudicated worldwide and number of visas issued to Indians since October 2018. The result estimates the number of people still with priority to get a visa before you do — assuming they can reach the visa stage. That result divided by 700 is your approximate wait time, in a FIFO world. But we’re not in a FIFO world, as the disconnect between USCIS processing time reports and the visa bulletin shows. As things stand, some people from India will get a visa unexpectedly early, and some unfairly late.  The visa bulletin will jump around, depending on who reaches the visa stage when. There’s room for hope, and room for fear — just not much predictability at this stage.

 

FY2019 Q4 Petition Processing Statistics

USCIS has published processing data on the Immigration & Citizenship Data page for July through September 2019 (FY2019 Q4).

I eagerly awaited this update, with three questions in mind. Would IPO start to recover processing volume in Q4, considering that previous reductions were credited to relatively minor and temporary factors (the RC authorization lapse in Q2 and I-526 training in Q3)? Would denial rates remain high? How large was the I-526 filing surge ahead of the regulations?

Now we know that IPO performance did not recover — yet —  in Q4. I-526 and I-829 denial numbers have not increased significantly. The I-526 denial percentage rose in Q3 and remained elevated in Q4 because approval numbers were so much lower than before.  People who filed I-526 by the end of September apparently got in before any significant pre-regs I-526 surge.

I-924 was a minor part of IPO’s FY19 workload, with few receipts and few pending forms. Denial numbers are remarkably high, but I suspect that many are actually withdrawals due to delayed processing. I-924 requests for exemplar approval lose value to the applicant if not adjudicated quickly.

I have a few questions for IPO Chief Sarah Kendall.

  1. IPO adjudicated 2.8x more forms in FY2018 than FY2019. Please explain.
  2. In one year under your leadership, IPO reversed five years of processing improvements, regressing to 2013 performance levels. Do you consider this reduced processing volume a problem that you plan to fix, or an expected outcome in your overall strategy?
  3. IPO had almost twice as many staff in FY19 as it had in FY15 (214 vs 110), yet adjudicated 41% fewer forms in FY19 than FY15. Productivity per staff member was 69% lower in FY19 than it was in FY15. Do you consider this productivity loss a problem that you plan to fix, or an expected outcome in your overall strategy?
  4. Looking at service-wide processing data between FY18 and FY19, EB-5 forms are the only EB forms that fell behind – other EB forms show increased approval numbers year-on-year. In fact, Form I-526 and I-924 rank #3 and #1 for worst performance in the entire service (with, respectively, 74% and 88% fewer approvals in FY19 and FY18). Only Form I-821 for Temporary Protected Status can compete, with approvals falling by 87%. Should we take a political message from these facts? Or does DHS see a problem and plan improvements in 2020?
  5. Do you recognize the connection between efficiency and integrity? Do you see the problem in denials that come too late to stem bad deals, and approvals that come too late to save good deals? Do you have a plan to strengthen program integrity by improving efficiency?
  6. If IPO continued FY19 processing volume into the future, then the current I-526 backlog would take three years to process, and the current I-829 backlog would take six years to process. How does IPO plan to improve going forward, to avoid such long times becoming the reality?
  7. What is your goal for processing volume in FY2020? How do you plan to reach that goal?

EB-5 Visa Timing in 2020

At least 70,000 people are currently in the stage between I-526 filing and receiving visas (conditional permanent residence). Who will receive EB-5 visas in 2020? The answer depends on visa availability, I-526 timing, and the role of country caps.

Visa Availability

Thanks to roll-over of unused numbers from other categories, EB-5 has a few more visa numbers than usual to work with this year.  Department of State has allocated 11,111 visas to EB-5 in FY2020, of which any one country can get up to 778 visas (7%) under the country caps.  (China is the exceptional case, having access to 288 visas by right plus – in practice – all the numbers unclaimed by low-volume countries. About 5,200 EB-5 visas will be leftover and available to China in FY2020, DOS estimated in October – almost 1,000 more than last year.)

I-526 Timing

For many people, I-526 processing time is the major factor determining the visa wait time. We have three primary sources of information about petition processing times: the USCIS Check Case Processing Times page (which has updates about twice monthly that I log here), the Historical Average Processing Times Page (with annual averages), and the Immigration & Citizenship Data page (which has quarterly updates on processing volume). The sources present this puzzle about I-526 processing times to date:

  • the Check Case Processing page currently reports an estimated time range for I-526 processing of 32.5 to 49.5 months, and has reported times in the range of 27 to 52 months since June 2019;
  • the Historical Average Processing page says that I-526 were pending an average of 19.8 months in FY2019;
  • the January 2020 Visa Bulletin has a final action date of May 1, 2018 for India, suggesting that there are Indians who filed I-526 21 months ago and already at the visa stage
  • the Immigration & Citizenship Data page last reported 13,000 I-526 petitions pending as of June 2019. That workload could possibly take 3-5 years to process only if USCIS processed fewer than 4,000 petitions a year going forward. But as recently as 2018, USCIS was processing that many I-526 every quarter.

Looking at the puzzle (and at my charts below, which plot the bi-monthly processing time report updates against the reported annual average), I incline toward the theory that USCIS started, mid-FY2019, to inflate the months reported on the Check Case Processing page to discourage complaints and inquiries, not because the average I-526 petition has been or will be pending 3-5 years. But we’ll have a better sense of the processing reality when more recent volume numbers get published. I hope that USCIS processing improvements will be a major focus of efforts in 2020 to improve EB-5 program integrity and viability.

Visa Timing by Country:

EB-5 investors today can expect to apply for a visa promptly upon I-526 approval, unless they are from China, Vietnam, or India – countries whose demand currently exceeds the 7% of annual EB-5 visas available to each country under the country cap. The country cap adds a constraint to the EB-5 process, creating backlogs and wait times for high-demand countries while keeping the path clear for new applicants low-demand countries. This status quo has been challenged by the Fairness for High-Skilled Immigrants Act. H.R.1044 passed the House in July 2019 (365 – 65), and Senator Mike Lee has worked tirelessly since then to push the companion S.386 in the Senate, negotiating his way progressively through blocks from Senator Paul, Senator Purdue, and most recently, Senator Durban. The Fairness for High-Skilled Immigrants Act bill has been around for five Congresses without ever becoming law (with a previous version also passing the House in 2011 before dying in the Senate), so I do not really expect it to pass now. But I also do not ignore the possibility, considering the intense lobbying push in 2019, and the bill’s major consequences. If by chance it passed, the bill would remove the country cap from all EB visas, thus decreasing the EB-5 visa wait for the backlog of China applicants while increasing the wait for people with more recent priority dates. If passed, new EB-5 investors from any country could expect to wait about seven years for conditional permanent residence, based on the size of the total EB-5 backlog. Most people currently awaiting I-526 approval would face a 3-7 year wait for visa availability, depending on priority dates, if the bill passed.

Visa Bulletin

Assuming no statutory change, the January 2020 Visa Bulletin provides the following projections for EB-5 visa availability through April/May 2020:

  • The EB-5 category will remain “current” for most countries, meaning that people from most countries can file visa applications as soon as they qualify, regardless of priority date.
  • The final action date for China “may be possible to advance at a slightly faster pace.” (The China FAD advanced an average of just one week per month in 2019, and is at November 22, 2014 as of January 2020.)
  • The final action date for India will “likely to advance at a very rapid pace until the level of demand increases.” (The India FAD has advanced a year since being set in July 2019, and jumped from 1/1/2018 in December 2019 to 5/1/2018 for January 2020.)
  • The final action date for Vietnam will likely have “limited forward movement.” (The Vietnam FAD advanced 26 weeks in 2019, and has reached 12/8/2016 for January 2020.)

Here are the stories I see behind the Visa Bulletin projections:

  • EB-5 will remain current for most countries, because most countries have fewer than 778 people who could possibly reach the EB-5 visa application stage this year.
  • The China final action date may advance due to an increase in visa supply, but the advance will likely be slight due to concurrent increase in visa demand. DOS expects to have nearly 1,000 more EB-5 visas to give China in FY20 than in FY19, as discussed above. Greater capacity would help the queue advance more quickly. However, Chinese filed over 3,000 more I-526 in FY15 than in FY14 (13,530 vs 9,722, to be precise). The Visa Bulletin is moving into that filing surge as it starts to accept visa applicants for FY15 priority dates. Greater volume of visa applicants for FY15 priority dates would tend make the line advance more slowly.
  • The India final action date has advanced rapidly because “the level of demand” has been low, and expected to remain so. “Demand” means the number of Indians documentarily qualified for a visa – i.e. with I-526 approval and visa application or I-485 in order. That number is low only because USCIS is slow and erratic with I-526 adjudication. Charles Oppenheim estimates that there were 4,000 to 5,000 Indians in line for an EB-5 visa in 2019 – enough to claim many years of visas.  But about 85% of that queue was stuck in the I-526 stage, and thus not yet qualified to demand a visa. Department of State has 788 visas to give Indians this year. Which of those 4-5K Indians in the queue gets one of the 788 visas depends on which I-526 USCIS can approve this year. So long as USCIS is very slow, only approving a few petitions, and particularly delaying old petitions, the Visa Bulletin will continue to advance the India FAD to open the door for those few who have reached the visa application stage. If USCIS increases volume of I-526 approvals, then more Indians will be able to compete for this year’s visas. In that event, the India FAD will slow its advance, or even move back in time to accommodate an influx of applications with older priority dates. Personally, I expect the India FAD to retrogress this year. Indians filed at least 330 I-526 petitions from January to May 2018, enough to absorb at least a year of visa numbers. Indians filed at least 806 I-526 petitions between April 2017 and May 2018 (April 2017 being the near end of the estimated time range for I-526 processing, according to the current USCIS processing times information page). That’s enough to absorb more than two years of available visas. All that demand will pull the India FAD back, assuming it can ever emerge from I-526 processing.  The Visa Bulletin FAD for India advanced from May 2017 to May 2018 in just seven months, and from January 2018 to May 2018 in just one month – which tells us that DOS simply hasn’t yet received the surge of visa demand that’s on the way from those early priority dates. The 300 or so Indian investors plus family from early 2018 could not possibly have all received visas in December 2019. When the petitions stuck in I-526 processing finally arrive at the visa stage, the visa bulletin will have to recalculate and may retrogress the India FAD.
  • The Vietnam FAD is expected to advance slowly from the current date of December 8, 2016. One would expect the movement to be slow because Vietnamese filed many I-526 in FY2017 – 523, to be precise, as compared with 404 petitions filed the previous year. This higher volume means that FY17 priority dates will take longer to move past the visa window than FY16 priority dates. Meanwhile, many FY17 petitions have completed I-526 processing, and thus the applicants are qualified and ready to claim available visas. However, we can see that the full surge of FY17 demand from Vietnam has not yet hit the visa stage, since the Visa Bulletin Chart B is still current for Vietnam, and USCIS is still allowing applicants to file I-485 using Chart B. That window could close as the pool of qualified Vietnamese applicants grows.

Visa Retrogression

People from China, Vietnam, and India who apply for visas through adjustment of status will be interested in this document, which gives helpful Q&A on visa availability and the I-485 process: USCIS Responses to Questions from the American Immigration Lawyers Association (AILA)

RC List Updates

And to close the year, an update on changes to the USCIS lists of approved regional centers. Note that I update approvals on my blog RC List page (together which such contact info as I can find) and terminations in my Excel Terminations log (together with a log of termination reasons and links to all termination letters posted so far by USCIS).

Additions to the USCIS Regional Center List, 08/27/19 to 12/30/19.

  • EB5 Affiliate Network Southeast Regional Center, LLC (Alabama, Georgia, Mississippi, South Carolina, Tennessee)
  • Plymouth Park Regional Center, LP (Texas)
  • Protogroup, Inc. (Florida) — Reinstated after termination in 2018
  • Southeast Regional Center LLC (Alabama, Georgia)

October 2019 Oppenheim EB-5 wait time estimates

Department of State Visa Control Office Chief Charles Oppenheim presented about EB-5 visa availability at the IIUSA conference on October 29, 2019. Here are his presentation slides and my recording. (Update: Lee Li of IIUSA has written a helpful slide-by-slide commentary on Oppenheim’s presentation in his article Data Analysis on Fiscal Year 2019 EB-5 Visa Number Usage & Estimated Visa Waiting Lines.)

The October 2019 presentation suggested encouraging headlines: shorter wait times and faster-moving visa bulletin dates than previously predicted. Behind the headlines lies a vexed story that I shall tackle in this difficult post.

Post Agenda:

  1. Put Oppenheim’s October 2019 EB-5 timing estimate in context of past estimates
  2. Discuss how to read the “EB-5 Applicants with Petitions on file at NVC and Estimated USCIS Applicant Data” slide in Oppenheim’s presentations
  3. Review the factors that can cause the EB-5 backlog to grow and shrink
  4. Collect available data relevant to interpreting Oppenheim’s estimates for China, Vietnam, and India
  5. Interpret Oppenheim’s estimates for India
  6. Discuss how backlog data relates to estimated Visa Bulletin final action dates

1. October 2019 Presentation in Context

Oppenheim estimates total EB-5 backlog size (actual applicants at the National Visa Center plus estimated applicants associated with pending I-526) and then calculates wait times as a function of backlog divided by annual visas available.  The following table compares key results from Oppenheim’s October 2019 presentation with previous presentations on October 30, 2018 and May 6, 2019.

Summary of Oppenheim Estimates 10/2018 to 10/2019
Potential year wait to visa availability if I-526 filed “today” October 30, 2018 Presentation May 6, 2019 Presentation October 29, 2018 Presentation
Brazil 1.5 1.6 1.4
China mainland 14 16.5 16.2
India 5.7 8.4 6.7
South Korea 2.2 2.4 3
China Taiwan 1.7 2 1.9
Vietnam 7.2 7.6 7.1
Backlog size (total applicants) as of… October 1, 2018 April 1, 2019 October 1, 2019
Brazil                    1,010                    1,114                        977
China mainland                  52,828                  49,537                  48,589
India                    4,014                    5,851                    4,707
South Korea                    1,513                    1,676                    2,121
China Taiwan                    1,162                    1,386                    1,342
Vietnam                    5,008                    5,269                    4,971
Worldwide Total                  69,060                  73,157                  70,198

Note that Oppenheim’s backlog and wait time estimates fell between May and October this year for all countries except South Korea, with particularly significant  reduction in the wait time estimate for India. I didn’t expect that, considering reports of a flood of I-526 filings ahead of the November 21 regulations deadline. What’s the story? Are there indeed fewer people in line for an EB-5 visa now than there were back in May, or has there been a change or omission in Oppenheim’s calculation? If fewer people in line, how did that happen? If a change or omission in the calculation, what is it, and should that cause us to rethink Oppenheim’s past or current wait time estimates? Read on…

Interpreting the “EB-5 Applicants with Petitions on file at NVC and Estimated USCIS Applicant Data” slide

The data quoted above comes from this key slide, a version of which is included in each of Oppenheim’s IIUSA presentations since 2018.

This slide is important because Oppenheim’s wait time estimates are calculated from the orange column. For example 977/700=1.4 year estimated wait for Brazil. 4,707/700=6.7 year estimated wait for India. The calculations assume average 700 visas available per year under the country cap, though the total can vary by year. The denominator for China is less predictable. Oppenheim estimated a 16.2-year wait for China in October 2019, which means that he must have been assuming 48,589/16.2 = 3,000 annual visas available on average to China going forward. (Aside: Oppenheim did not explain why he chose the 3,000-visa assumption for China. China received 4,326 visas in FY2019, and Oppenheim estimates that 5,270 visas will be available to China in FY2020. Average visas available to China going forward will only average as low as 3,000 if rest-of-the-world demand continues to rise going forward, which seems unlikely considering impending investment amount increases. Note also that the wait time estimates should have been tagged for petitions filed as of October 1, 2019–since that’s the date of the data upon which they are based–not for petitions filed as of October 29, 2019. Considering the likelihood of a filing surge in October 2019, this distinction could be significant.)

In his October 2019 presentation, and in follow-up discussion in person, Oppenheim clarified these points about how to read the EB-5 Applicants slide:

  • The “Actual Number of Applicants at NVC” column is just what it says: an accounting of the actual applicants with petitions on file at the National Visa Center as of October 1, 2019. This column does not include people who have I-526 approval but without active petitions on file at NVC for one reason or another. It does not include applicants currently seeking a visa through adjustment of status with USCIS. The column includes no assumption about the number of actual applicants at NVC who may eventually get denied. The NVC column is most significant to Oppenheim’s visa bulletin calculations, because it indicates how many people are ready to claim a visa. (The I-526 column estimates potential future demand. But no one in that column is currently qualified to claim a visa, and Oppenheim does not know for sure when and if those potential applicants will emerge from the I-526 process and become qualified.)
  • “DoS ESTIMATED Number of Applicants with Petitions on File at USCIS” refers specifically to I-526 petitions, and does not include I-485 petitions. This column estimates the future visa applicants associated with pending I-526 using this formula: actual I-526 pending at USCIS * assumption about approval rate for these I-526 * assumption about average visas per approved I-526. The pending I-526 data and approval rate assumption come from USCIS. The visas-to-I-526 assumption uses the “average percentage of EB-5 principal investors” Department of State data point that divides EB-5 visas issued to investors by total EB-5 visas issued to investors plus family. Oppenheim could not disclose the specific numbers used to calculate this column for October 2019. I’m particularly sad that he couldn’t disclose what USCIS told him about pending I-526 by country. He did volunteer that the I-526 approval rate assumption in the 10/2019 DoS estimate is the same for all countries, and lower than the approval rate assumption used for previous estimates. He further indicated that the “percentage of principals” assumption in the 10/2019 DoS estimate varies by country, is based on averages for visas issued in FY2019 and FY2018.
  • “Estimated Grand Total” equals the blue column plus the green column. Oppenheim has not been counting I-485 applicants anywhere in the table because historically a small percentage of EB-5 visas have gone through adjustment of status. He agreed that it would be a good idea to count pending I-485 applicants in future backlog estimates. (Another hint that the “Estimated Grand Total” might be missing something: Oppenheim estimates about 48,600 total applicants for China. This seems unexpectedly low considering that at least 35,500 Chinese filed I-526 since the start of FY2015, per USCIS data, and few of those Chinese could’ve received visas yet considering that the visa bulletin still has a November 1, 2014 final action date for China. So either the China backlog has in fact experienced major attrition along the way — plausible, considering sentiment among past Chinese investors — or some category of Chinese who still could apply for a visa are not being counted in the NVC or I-526 columns.)

Potential Factors in Backlog Total Change

The size of the EB-5 backlog is constantly changing, as people enter the line by filing I-526 and bringing family, and leave it by losing eligibility or receiving visas. To review specific factors that can cause change over time to the numbers in Oppenheim’s backlog calculations, and/or the actual backlog:

Number of “Actual Number of Applicants at NVC”

  • Decreased by applicants receiving visas
  • Decreased by applicants being denied visas or losing eligibility (e.g. aging out, I-526 revoked)
  • Decreased by applicants abandoning their petitions (need to contact NVC annually to avoid this)
  • Increased by more investors receiving I-526 approval and filing visa applications (thus moving from the green column to the blue column)

“DoS ESTIMATED Number of Applicants with Petition on File at USCIS”

  • Increased by I-526 filings
  • Decreased by I-526 approvals and denials
  • Increased or decreased by changes to the DoS assumption about number of pending I-526 that will be approved
  • Increased or decreased by changes to the DoS assumption about how many family members will be associated with each principal applicant

“Estimated Grand Total”

  • Increases if increases from incoming I-526 filings plus approval rate and family member assumptions exceed decreases from outgoing applicants who received visas or lost eligibility.
  • Decreases if the opposite data and assumptions prevail.
  • Could increase if Oppenheim started to count populations not included in the “Actual at NVC” and “Pending at USCIS” columns. This includes EB-5 applicants on pending I-485, and possibly other people with potential eligibility (I-526 approval) who do not currently have active petitions at NVC.

Data

Here is my spreadsheet that collects data particularly relevant to questions about Oppenheim’s wait time estimates in 2018 and 2019 – basically, available data related to the above bullet points.  I gaze at and play with these numbers as I to try to back calculate Oppenheim’s estimates, answer questions, and interpret a story. I’m not showing my messy calculations, but present the inputs for the convenience of others working with the similar questions. Curating this spreadsheet was not easy.

Example Interpretation and Application

Take India as an example of the challenge to interpret Oppenheim’s estimates.

Oppenheim’s estimated India wait time fell by 1.7 years between April 1, 2019 and October 1, 2019 because Oppenheim estimated that the India backlog fell by 1,078 applicants during that period —  Q3 and Q4 of FY2019. This backlog reduction is the net of 66 additional applicants at NVC and 1,144 fewer estimated applicants associated with pending I-526.

DOS issued 252 visas to Indians in Q3-Q4 of FY2019. (We don’t know how many visa applications were denied.) 252+66=318, so apparently the 1,144+ applicants who left the I-526 column between May and October did not all transfer over to the NVC column.

It could be that many applicants were indeed approved out of the I-526 column but then disappeared into uncounted categories—ie the pending I-485 pool and the still-preparing-a-visa-application pool. If that were true, then those people are out of Oppenheim’s calculation but not out of the queue in reality. In that case Oppenheim’s latest wait time would be an underestimate.

Or, maybe few applicants were actually approved out of the I-526 column, but the I-526 column slimmed nevertheless thanks to downgraded assumptions about I-526 approval rates and family size. Oppenheim confirmed in follow-up conversation that he did indeed change assumptions about future approval rates (significantly) and family sizes (insignificantly) for the October 2019 calculation. If I-526 receipts and adjudications were about equal in Q4 (as they were in Q3), then a changed visas-per-pending-I-526 assumption could explain the entire 20% change in estimated  applicants associated with India I-526. If I-526 receipts in fact exceeded adjudications in Q4 – as I would’ve thought considering the expected pre-regs filing surge and continually lengthening processing times reports – then the visas-per-pending-I-526 assumption must have fallen by even more than 20%. If Oppenheim’s revised visas-to-investor assumptions are more accurate than his previous assumptions, then the wait time estimates from May 2019 and October 2018 were overestimates. If not, the October 2019 estimate is an underestimate.

Oppenheim’s backlog estimate does not count applicants on pending I-485. In FY2018, consular processing accounted for over 90% of visas issued to China and Vietnam, and 67% of visas issued to Indians, according to the Annual Report of the Visa Office. If there continue to be a significant number of Indian EB-5 applicants on I-485, then Oppenheim is undercounting the India backlog. For China and Vietnam, it appears relatively safe to only look at NVC numbers.

Oppenheim’s backlog estimate does not make an assumption about the number of applicants pending at NVC who will not end up claiming visas. However, this factor might be significant in reality, as suggested by Oppenheim’s commentary on the visa bulletin. The India final action date jumped in August and September 2019 thanks to an unexpectedly large return of visa numbers. Those returned numbers represent people who had been at the head of the NVC queue but then were denied at the visa interview, or missed the interview. Their disappearance resulted in visas that had been marked out for them returning to NVC and becoming available to people who had expected a longer wait time.

Overall, contemplating the numbers for India, I conjecture:

  • That there can’t after all have been much of an Indian I-526 filing surge at least up to September 30, 2019 (Indeed, only South Korea clearly experienced a major filing surge in FY2019 Q4)
  • That Oppenheim must now be estimating an I-526 approval rate well under 75%
  • That a relatively low approval rate going forward is plausible, given trends at USCIS, and would mean that previous wait time estimates assuming higher future approval rates were overestimates
  • That the current India wait time estimate is likely still an underestimate because it does not count I-485

But such conjectures are exhausting and unsatisfying. I’ve temporarily suspended my EB-5 timing estimate service, because it’s so tedious to try to navigate and quantify all the “if/thens.” And then any estimate must be so laboriously and frustratingly qualified. Until now, I have generally used Oppenheim’s point-in-time estimates as anchors for priority-date-specific timing estimates. But that doesn’t work as well when Oppenheim’s assumptions change between the points in unknown ways.  When USCIS finally publishes I-526 data for FY2019 Q4 (and even better, FY2020 Q1), we’ll at least have a few more facts to anchor estimates and to help interpret Oppenheim’s estimates. And please please please USCIS, why can’t you continue to publish data on pending I-526 by country and month of priority date? This is so important to program integrity, and not justifiable as a state secret.

Backlog Estimates and the Visa Bulletin

Oppenheim’s IIUSA presentation gave predictions for Visa Bulletin final action dates.

Oppenheim Final Action Date Predictions on October 29, 2019
December 2019 Visa Bulletin October 2020 Visa Bulletin Prediction
China Mainland November 15, 2014 Best case: March 8, 2015

Worst case: February 15, 2015

India January 1, 2018 Best case: current

Worst case: November 2017

Vietnam December 1, 2016 Best case: June 1, 2017

Worst case: April 1, 2017

 

Again, the India case is a challenge. How could the October 2020 Visa Bulletin possibly become “current” for India in one year (meaning visas available to qualified applicants for all priority dates) if Oppenheim doesn’t expect October 2019 priority dates to have visas available for another 6+ years? This becomes possible if the pool of qualified applicants remains small despite the large total backlog. In other words, if most of the 6+-year India backlog remains bogged down in slow I-526 processing, and thus unable to claim available visas. Oppenheim apparently foresees that Department of State could find itself in October 2020 with 700 visas to give India and well under 700 Indian applicants pending at NVC. That could happen if USCIS keeps up its low volume of approvals. This situation is less likely for Vietnam and China, because there are already significant NVC backlogs for those countries from back when USCIS adjudicated more petitions.

Among the many bad consequences of slow and chaotic I-526 processing: it devalues priority dates. In December 2019, Department of State offers visas to Indians with priority dates up to January 1, 1018, according to the visa bulletin.  Meanwhile, USCIS is processing investor petitions filed 29 to 50 months ago,  according to its processing times report. That means that Indians with late 2017 priority dates can be claiming visas now, ahead of Indians with 2015, 2016, and 2017 priority dates who are still stuck in I-526 processing. Obviously, the backlog is not moving in order by priority date.  In a queue system, a person’s wait time should be a function of the number of other people already in line at the time he or she entered the queue. That would allow for fairness and predictability. But the EB-5 queue is falling into disorder thanks to the two-step process. When USCIS is slow to adjudicate I-526 petitions, and apparently advances them out of date order, then priority dates lose their predictive value. It’s not fair that an Indian with a November 2017 priority date can claim a visa today, while an Indian with a November 2015 priority date isn’t even outside of normal I-526 processing times according to USCIS. It’s not fair when wait time estimates have to ask not only “how many people were in line before me” but “how many people will be able cut in line before me thanks to disordered USCIS processing?” But that’s the fact that we face today, thanks to USCIS processing failures.

Ironically, the “best case” scenario for the October 2020 visa bulletin assumes a worst case scenario for I-526 processing. If USCIS speeds up after all, approving more I-526 and thus advancing more applicants to the visa stage, than future visa bulletin final action dates will move further back.