Department of State has published the Report of the Visa Office 2021, including data for the number of EB-5 visas issued by country through consular processing and adjustment of status from October 2020 through September 2021. The following three tables summarize key data points for traditionally high-volume countries.
In normal years, visa statistics tell a story about EB-5 visa demand. In 2020 and 2021, they tell a story of processing constraints.
Fewer than 3,000 EB-5 visas were issued in FY2021, limited by neither supply nor demand. FY2021 started with 18,602 EB-5 visas available to be issued and 50,936 EB-5 applicants registered at NVC waiting for visas (including 45,749 from China). Available visas were not issued to available demand due to COVID-19, regional center program expiration, and long-standing processing problems.
Direct EB-5 visas accounted for a relatively high percent of the total visas issued in FY2021 – not due to a spike in direct EB-5 applicants, but because regional center program expiration halted regional center visa issuance for three months of FY2021.
A relatively high percentage of EB-5 visas in FY2021 were issued through Adjustment of Status — not because 31% of EB-5 demand is living in the U.S., but because COVID-19 shut down consular processing abroad more than I-485 processing in the U.S. (For the on-going pandemic impact on consular processing, see the NVC Immigrant Visa Backlog Report page.)
While a relatively high in terms of percentage, Adjustment of Status EB-5 visas were still a very low number in FY2021 – the lowest in five years. Generally, USCIS boasted of its efforts in FY2021 to ramp up I-485 processing volume to help compensate for consular closures and prevent visa loss. Data shows that employment-based I-485 completions increased across the board in FY2021 — except sadly not at the California Service Center, and not for EB-5 status adjustments. AOS visas between FY2020 and FY2021 increased 35% overall, but fell 21% for EB-5. See the base of the post for additional charts illustrating I-485 trends. The regional center program expiration must be partly to blame for abnormally low AOS EB-5 visa numbers last year. Trend charts also show I-485 processing issues that predate the regional center program expiration, and even the pandemic. If you have a pending or future I-485, consider these charts and what has to change.
Vietnamese received more than three times as many EB-5 visas as Indians in FY2021 – not because Vietnam had more applicants ready (it had fewer), but because the consulate in Ho Chi Minh City weathered the pandemic better than the consulate in Mumbai or the California Service Center. (See charts below for processing trends by post.)
Chinese received even fewer EB-5 visas in FY2021 than in FY2020. This cannot be blamed on China demand (which was higher than ever in FY2021) or supply (with over 15,000 visas left “unused”), or entirely on COVID-19 (the Guangzhou consulate processed more immigrant visas overall in FY2021 than in FY2020). Chinese applicants particularly suffered from the regional center program expiration putting a stop to regional center visa issuance from July 2021.
The May 2022 Visa Bulletin indicates that visas now “may” be allocated to regional center EB-5 applicants – thus eliminating one constraint from 2021. The next question is whether and when DOS and USCIS “can” issue visas, considering the many other factors delaying and limiting visa issuance besides RC program status. I made a number of additional charts of data that bear on this question, including I-485 processing trends, I-485 backlogs, consular processing trends, and appointment interview trends. The charts help to put EB-5 delays in a wider context, and highlight problems that need to be addressed.
I’ve thought about reopening my paid EB-5 timing service, to accommodate everyone who’s thinking “don’t make me look at charts, just tell me when I can expect a visa, given my specific situation.” The barrier is that the firm answers that people want aren’t possible. At best, I can offer personalized explanations of and reflections on contributing factors to wait times, such as described in this post. Email me at suzanne@lucidtext.com if you want a personalized (but still unfortunately complicated and qualified) guided tour. Note also my page of EB5 Timing resources.
I haven’t had time to write about this yet (and waiting on the answers to a couple questions), but note also that IIUSA has nicely published the slides from its April 2022 conference presentation with Charles Oppenheim on What the Latest EB-5 Data is Telling Us. See also Lee Li’s article on per-country I-526 data in the latest Regional Center Business Journal.
This post tackles a momentous question: what is the impact of the 32% reserved visas provision in the EB-5 Reform and Integrity Act of 2022?
In the zero-sum visa game, newly-reserving visas for some means newly-restricting visa availability for others. That’s self-evident. But who wins and loses, and how much?
I’ll start with my conclusions, then take a deep dive into the detail, calculations, and questions behind the conclusions.
Reserved visas will probably not harm pending EB-5 applicants from countries other than China, Vietnam, and India, because country caps still protect minority-country visa availability, and demand under per-country limits has always been well under 68% of the annual EB-5 quota.
Reserved visas also have no incentive value for incoming EB-5 applicants from low-demand countries, since these applicants already have visa availability protected by country caps, and no visa backlogs to avoid.
Reserved visas can have incentive value for incoming EB-5 applicants from high-demand countries with backlogs (China, Vietnam, India) provided that the reserve visas are exclusive to incoming applicants, and thus offer a way to avoid standing in line behind thousands of pending applicants with earlier priority dates.
Reserved visas have a devastating cost for pending China-born applicants, because reserved visas drain the pool of “otherwise unused” numbers normally generally available at the end of every year to applicants with the oldest priority dates. The magnitude of the negative impact depends on whether or not Department of State interprets and applies the new law as making all reserve visas practically exclusive to post-March 15, 2022 priority dates, and thus inaccessible to the 80,000+ pending EB-5 applicants already queued up for visas. But even with optimal interpretation, the China backlog is poised to lose access to at least 2,000 visas a year.
This article has five parts:
Analogy: To set the stage, I suggest the analogy of an airport (like EB-5, a multi-stage process), and passengers waiting on standby (analogous to oversubscribed EB-5 applicants waiting on unused visas).
Law: I list out all the provisions in existing law that govern EB-5 visa availability, and the specific changes made in the EB-5 Reform and Integrity Act of 2022. This exercise highlights ambiguities and room for interpretation. I transcribe comments on the ambiguities from Charles Oppenheim, recently retired from Department of State, at a March 22 webinar with Wolfsdorf Law.
Data: I lay out data for historical EB-5 visa demand, supply, and allocation.
Application: I review how EB-5 visa wait time estimates worked under the old law, and consider the marginal impact of the new law on visa supply and wait times.
Conclusion: I consider possibilities for making the reserve visas law turn out less bad for our past clients than it could be
Three stages: buy a ticket, wait in the security queue to get to the gate area; wait in the gate area to get on a flight. Only passengers who reach the gate area are practically as well as theoretically eligible to use their tickets to get seats on a flight.
File I-526, wait for I-526 processing, then wait in the consular or adjustment process for a visa. An I-526 priority date is a kind of ticket to maybe claim a visa in the future, but only people who are documentarily qualified at the visa stage can use their priority dates to claim visas.
Standby tickets: Flying standby means that my ticket doesn’t lock in a specific designated seat, but I still have a chance to get a seat — assuming that a flight will have enough undesignated seats leftover for standbys to take.
Most EB-5 applicants from China are waiting on standby status for visas. Most Chinese do not have designated places in the annual EB-5 visa quota thanks to overbooking (under country caps, only 7% of annual visas can go to any one country by right). But having the oldest priority dates, Chinese are at the front of the standby line for any annual visas left unclaimed after by-right per-country allocations. Historically, at least over 40% of annual EB-5 visas have been “otherwise unused” and therefore leftover for the standby queue. Chinese have been able to depend on flying standby, because (1) they’ve been waiting longest and therefore at the head of the standby queue, and (2) a good number of “otherwise unused” visas have been reliably available to standby given the inherently low EB-5 demand from most other countries in the world. (Vietnam and India, while also overbooked, have not been able to expect any visas over the per-country limit, because they’re more recent and thus behind tens of thousands of Chinese in the standby queue.)
I believe that in real life, an airline will try to fill a flight with whoever at the gate can board, with people registered on the standby list getting otherwise unused seats in first come first served order.
Imagine if an agent at a crowded gate suddenly announced that 32% of seats on the flight are now exclusively reserved for passengers with codes that don’t yet exist in the boarding area or current standby list, but can be sold on tickets outside to prospective passengers who had been deterred by the long standby queue already at the gate. That’s the closest analogy I can think of to the 32% reserved visa provision in the new law (and particularly the 20% rural reserve, given very few past rural investments).
In the picture, I tried to illustrate who’s happy (the ticket seller), who’s sad (the displaced standby passengers at the gate), who’s confused (the pending standby passengers who technically match reserve conditions, but not sure yet how/if they can claim new codes only being stamped outside on new tickets), who doesn’t care (the passenger who has a designated seat anyway and not dependent on standby or reserves), who’s frustrated (the guy at the gate who looks around, sees no one positioned yet to use up the reserved seats, and realizes that planes will have to take off partly empty until new reserve-eligible passengers finally make it to the gate, meaning existing standbys get further delayed for nothing), who’s conflicted (the prospective passengers standing in a crowd outside the ticket counter, wondering how to interpret the pitch that they won’t find themselves stuck in a crowd once they get to the boarding gate), and who’s two-faced (the airline, with different messages at the ticket counter and the gate).
Part 2: Law
The EB-5 Reform and Integrity Act of 2022 introduces two changes to the law for EB-5 visa allocation:
it repeals/replaces the two pre-existing categories of EB-5 set-aside visas (3,000 regional center, 3,000 TEA), and adds three newly-defined reserved visa categories (20% rural, 10% high unemployment, 2% infrastructure);
it introduces an instruction to preserve unused reserved visas from year to year within the EB-5 category (without, however, repealing or amending the parts of the existing law that define/cap the annual EB-5 limit and allocate any used EB-5 visas to other visa categories).
Law prior to the EB-5 Reform and Integrity Act of 2022
INA 201(d): The Employment-Based category is allocated a base 140,000 visa annually. The EB limit for a given year is the base 140,000 plus any unused Family-Based visas from the previous year.
RIA specifies no change to INA 201(d)
INA 203(b)(5)(A) Each year, the EB-5 category is allocated a maximum of 7.1% of the EB limit for that year.
RIA specifies no change to INA 203(b)(5)(A)
INA 203(e)(1) Available EB visas are generally issued to eligible immigrants in the order in which the immigrant petition was filed.
RIA specifies no change to INA 203(e)(1)
INA 202(a)(2) states a per-country limit: that no more than 7 percent of visas available within an EB category in a fiscal year can be made available to natives of any one country. INA 202(a)(3) and (5)(A) provide an exception: that EB immigrants are not subject to the per country limit allocation in a period where available visas exceed the number of qualified applicants to take them.
RIA specifies no change INA 202(a)
INA 203(b)(1) If visas still remain unused within the EB-5 category near the end of a fiscal year, such unused visas are made available for use by priority workers (EB-1/EB-2)
RIA specifies no change to INA 203(b)(1)
INA 201(c): If the EB category as a whole does not use all its allocated visas in a fiscal year, such unused visas are made available within the Family-Based category in the next fiscal year.
RIA specifies no change to INA 201(c)
I’m not sure where this is in the INA, but DOS explains in its document on Operation of the Numerical Control Process that DOS allots visa numbers monthly to consular posts and CIS to be given to reported documentarily-qualified applicants within established cut-off dates. Significantly, visa numbers do not get allotted to applicants earlier in the process; including not when petitioners invest or file I-526.
RIA specifies no change to the timing of visa allotment.
Section 610 of the Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations Act, 1993 (8 U.S.C. 1153 note) sets aside 3,000 visas annually for regional center applicants.
RIA Section 103(a) repeals Section 610 of the Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations Act, 1993 (8 U.S.C. 1153 note), thus doing away with the regional center visa set aside in that section. RIA Section 103(b) says that “visas under this subparagraph shall be made available” to a new program for pooled investment, but does not specify a specific number of visas to be made available specific to regional center applicants.
INA Section 203(b)(5)(B) specifies that “Not less than 3,000 of [EB-5] visas made available in each fiscal year shall be reserved for qualified immigrants who invest in a new commercial enterprise … which will create employment in a targeted employment area.”
RIA Section 102(a) (2) “amends” (i.e. apparently deletes and replaces) the old INA Section 203(b)(5)(B) to read as follows: “(B) DESIGNATIONS AND RESERVED VISAS.— “(i) RESERVED VISAS.— “(I) IN GENERAL. —Of the visas made available under this paragraph in each fiscal year— “(aa) 20 percent shall be reserved for qualified immigrants who invest in a rural area; “(bb) 10 percent shall be reserved for qualified immigrants who invest in an area designated by the Secretary of Homeland Security under clause (ii) as a high unemployment area; and “(cc) 2 percent shall be reserved for qualified immigrants who invest in infrastructure projects. “(II) UNUSED VISAS.— “(aa) CARRYOVER.—At the end of each fiscal year, any unused visas reserved for qualified immigrants investing in each of the categories described in items (aa) through (cc) of subclause (I) shall remain available within the same category for the immediately succeeding fiscal year. “(bb) GENERAL AVAILABILITY.—Visas described in items (aa) through (cc) of subclause (I) that are not issued by the end of the succeeding fiscal year referred to in item (aa) shall be made available to qualified immigrants described under subparagraph (A). ERIA Section 102 has an effective date of March 15, 2022.
Notes on what did and didn’t change in the law, and what’s ambiguous
Minority Country Protection: The new law does not change the rule that protects low-volume countries with an annual 7% per country limit – a cap that high-volume countries may only exceed if and when there’s insufficient demand for available visas. Even if the new law does make 32% of 10,000 annual EB-5 visas practically unavailable to the backlog of pending applicants, that shouldn’t hurt minority countries in theory. An EB-5 applicant from Ireland doesn’t depend on a total 10,000 visas available anyway, but only on one of the 7% of EB-5 visas that must be made available to the few Irish applicants ready to claim them before other countries can start to exceed their 7% caps. Thus far, the highest that EB-5 demand under per-country limits has ever gone is 5,851 total in FY2019 (other visas that year were “otherwise unused” and thus issued to the oldest Chinese applicants). So even reducing generally-available EB-5 visas to about 6,800, if set asides have that effect, may not threaten applicants under per-country limits. At the same time, reserved visas don’t stand to benefit minority countries, since applicants from low-demand countries don’t have visa backlogs/visa wait times to avoid.
Eliminating RC and TEA Visa Set-asides: The new law explicitly repeals or replaces the EB-5 visa set asides in previous law: 3,000 for regional centers and 3,000 for TEA. Those set-asides were popularly forgotten because they hardly mattered in practice. There never were over 7,000 non-regional center or over 7,000 non-TEA investors ready to request visas in a year, and thus no one ever ran up against the old set-aside limits. With the backlog dominated by RC and TEA investors, the previous RC and TEA set-asides gave no short-cut around the backlog. So, who cares about eliminating those insignificant set-asides? At minimum, pending applicants are confused now, since their pending applications and the Visa Bulletin are marked for visa codes (C5, T5, I5, or R5) that correspond to the now-eliminated reserved visa categories. The reserve categories around which they invested have suddenly disappeared. For applicants not dependent on the Visa Bulletin anyway, this records confusion shouldn’t affect their actual visa availability. But it’s a reminder that the grandfathering fight is not done; we need to improve the law so that filing I-526 locks in something for future visa availability, not just regional center status. As it is, the law and situation that exists when you commit to the EB-5 process guarantees nothing for visa availability; people are dependent on the visas that exist and the rules for allocating them once they finally reach the visa stage. If the law changes midstream, too bad.
Creating New Reserved Visa Categories: The new law creates three new EB-5 set-aside categories: 20% rural, 10% DHS-designated high unemployment, and 2% infrastructure. These changes are effective as of the date of enactment — March 15, 2022 – which means that someone filing I-526 today should be assigned a new code that marks him or her as belonging or not to one or more of the three new categories. What’s not clear: are any of those these reserved visas theoretically or practically available to the 80,000+ people in the EB-5 visa backlog, who are coded C5, T5, I5, and R5 under the now-abolished RC and TEA set-aside categories?
In fact, most of the backlog invested in TEAs based on high unemployment. Whether or not those applicants can touch the new 10% high-unemployment set-aside would depend on (1) whether or not DOS interprets the new set-asides as theoretically available to people who started the process pre-enactment and under slightly different high-unemployment area definitions, and (2) whether or not DOS can get USCIS to go back and re-code all the backlogged TEA applicants as being either high unemployment or rural investors, such that DOS is practically able to offer reserve visas to the backlog as well as to new investors.
Of course, the people who drafted the reserved visa law must have wanted the reserve visas available to incentivize new investment. Reserved visas can only have an incentive function if they can offer a priority/timing advantage to new investors, which is only possible if the visas are not absorbed by the many people already in the backlog waiting for visas. Thus the talking point that reserved visas should only apply “prospectively.” This has long been an industry lobbying focus (e.g. this 2019 industry letter to Congress requesting set-asides that apply only to new I-526 petitions and not pending applicants.)
Of course, pending applicants do not want reserved visas to be prospectively available only to incoming I-526. The China backlog must particularly fight to lose as few visa numbers as possible, which means keeping their access to reserve visas if possible. At least, the backlog has a potential chance to access the 10% of visas newly reserved for high unemployment investment. Many backlogged applicants in fact invested in high-unemployment areas, and just need to be re-coded and recognized as such – something for investor associations to fight for. The 20% rural set-aside is probably largely an inevitable loss to the backlog because, as a practical matter, few past investments were in rural projects. Most rural reserves are therefore effectively off the table for the backlog even if DOS decides that past rural applicants could theoretically qualify for rural reserves.
On March 22, Bernard Wolfsdorf and Joseph Barnett held a wonderful webinar with special guest Charles Oppenheim, recently retired chief of Visa Control at Department of State. A webinar recording is now available on Youtube, and I’ve transcribed below a few of Charlie’s comments on the reserved visas provision in the new law.
[Quoted from minute 32] Oppenheim: I do believe that the State Department will have to have new visa categories, and issuance codes or issuance symbols need to be established to identify the applicants who are going to be eligible for processing under the 10, 20, and 2 percent set aside limits. This may actually eventually result in there being five EB-5 visa listings in the visa bulletin. Right now there are only two for non-regional centers and regional centers. Again, with the establishment of new codes to cover the set-asides, I think that is likely to go to five listings.
[Quoted from minute 40] Oppenheim: It’s important to note that the use of the use of the new codes to distinguish the 20, 10, 2 set-asides is going to be necessary for Department of State to compare the amount of numbers which have already been used in those categories, the amount of documentarily complete demand ready for immediate processing, and to know the potential demand requiring use of a number in the future. That information is used not only for the set-asides, but for the determination of any of the preference category’s final action dates. And it’s necessary to apply that to control number use under the respective limits. Therefore it is going to be very important for the officers to know which of the visa codes to be used for final action on a case so that the number use can be accurately tracked and then reported to the visa office for numerical control purposes. Unfortunately my previous position did not require me to know the detailed information which is included on these petitions, so I can’t really say how easy it’s going to be for them to make that distinction between the rural and high unemployment applicants for these set asides.
[Quoted from 1:01:36] Question: Do the reserved visa categories create even longer delays for Mainland China, with the fact that 3,200 visas are being pulled from the general category? Oppenheim: I think there is the potential for that. Although, it’s unknown how many of the Chinese applicants that are in line may be able to benefit by this new set-aside. I think that is one of the unknowns at this point, and I don’t think it’s worth worrying about too much until we know in terms of the official determination of the implementation of the set-asides. [end Oppenheim quote]
Impact of Reserved Categories: If the reserved visas are genuinely reserved for post-enactment I-526, not available to the pending backlog, who wins? In the near term, reserved visas benefit incoming applicants from oversubscribed countries, who would otherwise be stuck in line behind many thousands of fellow-countrymen for generally available visas.
The new law creates visa reserves that work if they restrict 32% of visas such that those visas can’t be issued to the oldest priority dates, and must be issued to post-2022 priority dates or go unused. For example, in 2023 Department of State will have about 2,000+ visas restricted for rural investment. If Department of State has already issued 700 visas to the oldest applicants from every country in 2023 and sees 1,000 rural set-asides still lying unused on the table, it will have to start waving up whichever remaining rural applicants are eligible for those visas, even if they’re Indians or Vietnamese or Chinese already over the 700 limit and with priority dates far more recent than their backlogged fellow-countrymen. That’s the queue-cutting opportunity. Genuinely reserved visas serve to create a new category of standby that can attract new applicants from China, Vietnam, and India who would’ve otherwise been at the back of the old generally-available standby queue. I emphasize “near-term” advantage for in-coming applicants, though, because a new standby category only benefits the people who start the new queue. 2,000 rural visas per year can sustainably accommodate around 700 investors per year, and will cease to offer a fast track when demand exceeds that level and creates new backlogs.
For the rest of the world, reserved visas should not be significant. Department of State already waves up minority-country EB-5 applicants as soon as they’re ready by virtue of their nationality priority under the per-country limits, with no need for other priority. (I still expect to see quite a few minority-country rural investors, though, because the I-526 processing priority provision for rural in the new law does offer time advantage for everyone.)
Unused Reserved Visas: It’s hard to tell whether the “unused visas” provision in the new law is careless or crafty. Maybe it was written by people who just forgot all those conflicting parts of existing law that prevent EB-5 visas from rolling over to EB-5 from year to year. Maybe it was written by people who ignored the existing law conflicts on purpose, gambling that Department of State might choose to settle the conflict in favor of EB-5, start allowing a limited amount of EB-5 visa recapture for the first time in history, and start letting the EB-5 annual limit exceed its statutory maximum 7.1% of EB allocation for the first time. This could be a back door to recapturing at least FY2022’s large number of unused EB-5 visas, which would be very valuable. The darkest possible interpretation is that the “unused visa” provision was just put in the law to help ensure that no matter how interpreted – whether the unused set-aside visas are retained for new applicants or lost to other preference categories as usual — at least they’ll definitely not be generally available to the China backlog at each year-end, and thus conveniently serve to lengthen wait times for redeployable Chinese investment. I hope no one did think that way, because investors and their projects are not infinitely patient.
In the March 22 webinar, Oppenheim addressed questions about the unused visas provision in light of existing law.
[Quoted starting from minute 42] Oppenheim: In one way of looking at this, the INA guidelines clearly state how unused numbers within a preference category’s annual limit should be made available to other preferences. For example, Section 203(b)(1) indicates already that any unused employment fourth or fifth preference numbers should be added to the EB-1 annual limit. Also Section 201(c) says that any unused numbers from the previous year’s worldwide employment limit fall across and are to be used in the determination of the next year’s family sponsored annual limit. So, despite the fact there are these set aside provisions, I think it could be argued that the current year’s unused set-aside numbers could be made available to other EB-5 applicants, and then if they were still unused numbers under the overall EB-5 limit, such numbers could then fall up for potential use in EB-1 during the current fiscal year. And if you followed that logic, then the only numbers that ultimately remained unused after the fall-up provision would then fall across for the next year’s set-aside limit. That’s confusing, but I think that there’s room for interpretation, and it could be argued either way on this. …I think that there likely will be a need for technical corrections. … I do think that there potentially will be some changes, at least to the language to clearly identify what is meant. Because, for example on this set-aside provision where it’s saying, ok, if there are unused numbers under the 20 percent set-aside, that those numbers should be reserved and added to the next year’s limit. That is fine in regards to the EB-5 applicants, but if you’re an advocate for EB-1 or EB-2 or family fourth or any other preference category, you may be saying, well why can’t we have the same benefit where our unused EB-1 numbers are reserved for the next year, etc. That type of “reserved for the next year” previously has only occurred through legislative action to recapture unused numbers. So this is kind of a whole new world. And again, I think that’s why it’s going to be important to clearly interpret how you distinguish unused numbers.
[Quoted from minute 58] Joseph Barnett: Can I try to paraphrase what you mentioned before, Charlie, and let me know if I’m getting this right here. You think that the Department of State is going to have to create new visa categories to deal with the reserved visa classes. You don’t necessarily know how the existing investors are going to be included into those new visa categories without further action by investors or USCIS or some way to report that demand. And with regards to the unused visas provisions, there’s going to have to be some interpretation and discussion in DOS about how that’s going to play out and how it’s going to fall up or fall across – they’re just kind of unknowns at this point?
Oppenheim: Correct. [end Oppenheim quote]
Part 3: Data
After all this general talk, let’s look at numbers. I’ve copied below tidy tables of figures that represent the individual real people caught up in all this, and the history of how EB-5 visa demand and allocation has played out to date. (To interact with the data and see source citations, access the Excel file of Key Backlog data linked to my EB-5 Timing page.)
Points to note as you look at visa issuance numbers:
The variable number of EB-5 visas issued each year has followed from (1) the number of visas technically available to EB-5 and each country that year as calculated under the INA rules described above, and (2) the number of visas that applicants were practically able/willing to claim (by getting through I-526 processing to the visa stage) and that the government was practically able to issue (considering processing constraints).
Note the number of EB-5 visas actually issued to China-born applicants each year, from over 8,000 in FY2015 to just over 4,000 in FY2018 and FY2019. Those China visa numbers were a function of visa demand from the rest of the world. Each year, the oldest applicants received whatever was leftover of the EB-5 limit after DOS satisfied rest-of-world demand within per-country limits. (Except FY2020, when everyone got constrained by COVID-19.)
On the following I-526 table, note the number and timing of I-526 filings from countries other than China. See that China had its I-526 filing surge early, which is why it now leads the standby queue at the visa stage, while India had a later surge that’s thus further back in queue priority (and largely not at the visa stage yet, thanks to sluggish I-526 processing). Most significant of all, note the relatively flat line of I-526 filings from non-backlogged countries since 2015, even during years of peak EB-5 popularity and the $500,000 threshold. EB-5 just doesn’t have a big market in most of the world. That “all except China, India, Vietnam” column in the I-526 filing trend gave hope to the China backlog and concern to people selling EB-5. Backlogged Chinese applicants could rejoice to see on-going low rest-of-world I-526 filing numbers, which underwrote the hope that “otherwise unused” visas would continue to be leftover from the rest of the world in significant numbers for the oldest Chinese applicants. Marketers would lament the persistently and organically low ROW I-526 numbers, and strategize to get more visas to offer the historically fruitful China/India/Vietnam markets now constrained by backlogs of old priority dates.
Part 4: Application
For a reminder of how EB-5 visa distribution used to work, consider this slide from the “Visa Update with Charles Oppenheim and Roundtable Discussion” at the 2019 IIUSA EB-5 Industry Forum (October 29, 2019). The equation starts with the annual visa limit, then deducts all qualified demand from applicants at/under the per-country limit, and ends with a difference of “unused” numbers available for allocation to the oldest applicants regardless of per-country limit.
As it turned out, a global pandemic intervened and prevented Department of State from actually issuing the number of visas anticipated for FY2020. But in theory, the 11,000 visa available for FY2020 should’ve been distributed first to all prepared applicants up to their 7% country limits, with the balance then leftover for the oldest i.e. Chinese applicants. Oppenheim estimated in 2019 that over 5,000 visa could be allocated to Chinese in FY2020, as a function of the expected number of “otherwise unused” numbers.
Now here’s a version of the same slide, but marked up to show how the calculation would change with reserved visas — if reserved visas are indeed reserved in new categories and not accessible to pending pre-March 2022 priority dates.
As illustrated, the difference falls on the “unused numbers” calculation. Removing 32% percent of visas from the general pool does not affect visa allocation under per-country limits in this year, because more than 32% of visas were going to be leftover after per-country allocation anyway. The impact is on the number of available leftovers for the oldest applicants, and the applicants depending on leftovers for their visa allocation. In the year shown in the slide example, the number of leftover visas for the oldest (Chinese) priority dates falls from 5,200 to 1,670.
Let’s say I’m a China-born EB-5 applicant who can estimate 40,000 other Chinese applicants in process with earlier priority dates. How does my wait time calculation change depending on whether I can estimate the queue before me proceeding at an average rate of 5,000+ visas per year to China, or 1,700 per year? 40,000/5,000=8 years. 40,000/1,700=24 years. That’s a huge difference. Of course, real life is complicated. For example 40,000 isn’t just a number but represents humans who are liable to giving up and aging out and dying, in increasing numbers as time goes on. So in real life, changing the denominator of a wait time equation – as reserved visas does for China – will change the numerator as well. In practice, if supply relief doesn’t bring down wait times, demand failure inevitably will. Meanwhile, a variety of factors besides reserved visas sway the denominator of the China wait time equation. Probably new minority-country investors who would’ve invested in EB-5 anyway will choose the new TEA categories, thus eventually blunting the marginal-difference impact of set-asides. Probably overall demand at the $800,000+ level will be lower than before, such that lower incoming demand will leave more visas unused and available to the China backlog eventually even above set-aside limits. Maybe the backlog will get some supply relief in three years if DOS actually allows recapturing unused reserve visas. Real life gives many moving parts to account for. But, all other factors being equal, reserved visas in themselves (if genuinely reserved) certainly have a dreadful impact on the wait time equation for backlogged Chinese applicants. (For detailed analysis, see EB5 Sir’s recent posts.)
Part 5: Conclusion
Anyone who made it to the end of this exhausting article obviously cares about the impact of reserved visas. What can we do now? The EB-5 Reform and Integrity Act of 2022 is law since March 15, 2022. Is there any room to stand athwart history yelling Stop?
Here are some theoretical possibilities for making the reserve visas law turn out less bad for our past clients than it could be.
The China backlog will lose at least 1,000 fewer annual visas than it would lose otherwise if (A) Department of State interprets the new reserved visa categories as being available theory to pending applicants who happen to have invested in high unemployment area, rural area, or infrastructure projects, and also (B) DOS and USCIS communicate to mark pending applications that match the new set-aside categories.
The China backlog will lose fewer visas if Department of State interprets the “unused visas” provision in the law to mean that 32% of the visas that will go unused in FY2022 (6,362 numbers) can be added to the EB-5 limit in FY2024, and generally available.
The China backlog will lose fewer visas if Department of State disregards the “unused visas” provision in the new law as contradictory to the INA, and makes any unused EB-5 visas available to the oldest EB-5 priority dates at the end of each year, regardless of reserved status.
The China backlog may lose fewer visas if we decline to promote reserve visas to new Chinese, Indian and Vietnamese clients, realizing that every one EB-5 visa taken to accommodate a new backlog-country client who wouldn’t have invested otherwise is one visa removed from the pool that would have been available to the oldest backlogged priority dates if not for visa reserves. But this grand gesture would only help our past clients if unused reserved visas can indeed eventually be accessed by the backlog – an open question.
Investors and project companies can best manage impacts if they are realistic about what’s happening. Let’s refuse fallacies (“this is queue cutting with no queue cuts”) and cop-outs (“it’s complicated, so don’t bother thinking or worrying about it”)
Most important, we need to pour advocacy dollars and energy into getting any possible backlog relief for the oldest EB-5 applicants, who need it now more desperately than ever. Regional centers who don’t want to deal with a fight for the exits will want to help fight for visa conditions that keep immigration hopes alive. The best way to incentivize new EB-5 demand is to create an environment where past EB-5 users can also be seen to flourish.
Here, in one picture, is what’s happened to USCIS performance in adjudicating EB-5 forms.
Official data now confirms what I previously reported based on leaked information: the Investor Program Office reduced I-526 processing volumes to almost nothing at the end of 2021, and also had the lowest I-829 performance numbers in two years.
These charts show performance over the course of IPO’s history.
Comparing FY2022 Q1 volumes with the average for 2017-2018, IPO processed 2 times fewer I-829 and 54 times fewer I-526. And that’s despite having (or at least, paying) more employees in 2022 than in 2017/2018. I-526 productivity for the second half of 2021 was so low as to be almost invisible in the comparison chart, and not for lack of I-526 to process. The report shows quite a few I-526 receipts that must have been direct EB-5 in the second half of 2021, not to mention the hundreds of direct cases in the backlog. I have no idea why I-829, after having shown an improvement trend in 2020, actually got worse again in 2021, even after the regional center program lapse made more resources available to work on I-829.
I previously lamented how productivity tumbled after Sarah Kendall took over as IPO chief at the end of 2018, and celebrated when she moved on at the end of 2020. Now we know that her replacement Alissa Emmel (an internal promotion, unfortunately) is even worse. If you’re a Congressperson or journalist hungry to be the hero who tackles a hot scandal that’s tying up billions of dollars and endangering thousands of job-creating projects and inviting fraud, the USCIS Investor Program Office is red meat ready for you. The numbers alone tell a shocking story, and I could offer further spicy details about what’s been going on specifically with processing, lack of industry engagement, and some evidence of conspiracy. This government department desperately needs attention and accountability.
Petition by Investor to Remove Conditions on Permanent Resident Status
618
299
27
326
11,731
41.2
I-924
Application For Regional Center Designation Under the Immigrant Investor Program
–
–
–
–
138
N/A
I-924A
Annual Certification of Regional Center
344
–
–
–
1,734
N/A
Notes:
The I-526 denial number looks high, but many of these are actually withdrawals (which get coded with denials for summary reports).
I-526 receipt numbers were impressively high in Q1, considering that only direct cases could be filed in October to December 2021.
The 40+ month processing times reported for EB-5 forms reflect the fact that IPO spent the end of 2021 working on a low volume of very old petitions,. “Processing times are defined as the number of months it took for an application, petition, or request to be processed from receipt to completion in a given time period. The number of months presented is the median which is the time it took to complete 50% of all the cases processed in the quarter.” The “All Forms Report” conveniently shows that EB-5 forms have almost the worst processing times in the entire immigration service.
While USCIS does not report data specific to EB-5 I-485, I always check the category-wide I-485 report and look at performance numbers for the California Service Center, where most (all?) EB-5 I-485 get adjudicated. California Service Center productivity unfortunately also does not look good for the inventory of 5,400 Employment-Based forms. (I don’t know what fraction of the EB inventory is EB-5.)
Future processing times can be estimated by dividing inventory by processing volume. Looking at FY2022 Q1 I-526 data for example, I can see 13,132 I-526 pending and 61 I-526 processed in a quarter, and calculate that it would take 13,132/61=215 quarters (i.e. 54 years) to clear the inventory and reach my petition, if I file I-526 today and IPO does not improve on recent processing productivity. On the other hand, if IPO does improve and quickly returns to processing over 4,000 I-526 per quarter (as they did in the recent past and could do again), then the I-526 processing time estimate equation for a new I-526 becomes 13,132/4,000=3 quarters (i.e. less than one year). When prospective investors ask “how long will I-526 take?” they want an answer much closer to one year than 54 years. When Congressional reformers ask “how long will it take the agency to examine investor petitions and find any problems,” they also don’t want to hear about half centuries. IPO needs an intervention, ASAP.
The EB-5 Reform and Integrity Act just passed by Congress mandates USCIS to study the fees necessary to adjudicate I-526 in less than 240 days (or 120 days for a TEA investment) and I-829 in 240 days. IPO would have to process almost 5,000 I-526 per quarter and 4,400 I-829 per quarter to clear the the current inventory in 8 months.
I also have additional leaked data with processing detail for January to March 2022, including specific dates processed and RFE volume, and will report that as time permits. But my first priority is articles on the new law and how reserved visas will affect the China backlog. And I have my business plan writing day job to manage. (I hear the I-485 questions but I don’t know how to answer them. When a lawyer writes about who can use I-485 concurrent filing and when and how, I will link the article here. Or I welcome insights in the comments.)
While the USCIS report simply uses the word “denied” in the column heading, the 4-point font notes at the base of the report clarifies that “Denied are the number of applications or petitions that were denied, terminated, withdrawn, or revoked during the reporting period.” This is particularly significant for I-526, as the majority of I-526 cases in the “denied” column for July to September 2021 were actually withdrawals. (i.e. not reflecting any adjudication work or petition problems, but USCIS simply acknowledging investor decisions to withdraw their petitions). An inside source tells me that from July to September 2021, there were 254 I-526 withdrawn and 48 I-526 denied. Not sure how USCIS gets to the number 266 – possibly again due to the confusion exhibited in the I-526 report about when months begin and end.
I started 2021 with hope for EB-5 processing. I foresaw improvement from the confirmation of Alejandro Mayorkas as the new DHS Secretary, since as USCIS Director under Obama he was attentive to EB-5 and personally responsible for getting resources to establish the Investor Program Office and fill it with high-grade staff. I had hopes for Ur Jaddou, who promised this year that “As USCIS director, I will work each and every day to ensure our nation’s legal immigration system is managed in a way that honors our heritage as a nation of welcome,” and who rightly opined that “USCIS must process applications fairly, efficiently, and in a humane manner.” I was excited to hear about the departure last year of IPO Chief Sarah Kendall, who was responsible for decimating IPO productivity in 2019/2020, and I looked forward to better new leadership at IPO. When the regional center program lapsed, thus temporarily reducing the I-526 processing workload by at least 90% and eliminating the I-924 and RC compliance workloads, I expected a silver lining in the form of more resources for direct EB-5 and I-829.
Data on EB-5 form processing has disappointed my hopes so far. (Oh how I miss reporting good news. I do truly search for it.) I-526 and I-829 processing productivity fell in FY2021, even below previous low levels. I-829 only got a little worse over the course of the year. I-526 got much worse, with post-RC-shutdown processing volume reduced by an even greater percentage than post-shutdown inventory.
EB-5 forms won first, second, and third prize for the worst processing times of all USCIS forms in FY2021. Form I-526 and Form I-829 continue to dominate in FY2022 so far, with median processing times so lengthy (48.8 and 41.8 months) that they’re almost double the third place finisher for worst processing in all of USCIS forms (Form I-730, at 25.4 months). (As an aside, note that the historical PT page that I linked is now more timely and worth checking now than the regular processing times page, which has changed to a 6-month average method to help hide fluctuations.)
It’s important to remember that the median processing times reported by USCIS reflect the median PT time experienced by people at the end of the process, and not predictive for people starting the process under entirely different conditions. But I’m also alarmed by results from the equation for predicting future processing times: inventory divided by throughput. That equation looks disheartening when throughput falls (as has been happening for I-829, though I keep expecting the tide to turn), and impossible when both inventory and throughput are not in a trend but liable to go up or down by over 90% (the case with I-526). At the moment, the I-526 processing time prediction equation is flirting with what happens when a denominator reaches zero. In the entire month of November, only 14 I-526 were approved or denied. Many days in December have passed with no I-526 work completed at all, not even RFEs.
What’s going on? The numbers suggest that EB-5 is not a priority yet for the administration/USCIS. (I also note the absence of any EB-5 benefit in USCIS’s celebration of FY2021 accomplishments.) On-going lack of leadership at the Investor Program Office must be partly to blame. (IPO hasn’t had a chief since December 2020). The regional center program expiration has had an impact, with completion rates suggesting that IPO has, at least temporarily, lost most of its I-526 adjudicators. Instead of re-allocating resources to direct EB-5 and I-829, IPO appears to have merely let resources go.
The EB-5 program clearly needs to be stabilized, so that it can work again, and stop the bleeding at IPO. Clients are coming to me with wonderful job-creating business ideas, but we depend on USCIS processing to support that economic development potential, and to provide any chance of an immigration incentive for investment in good business. The current dire EB-5 processing situation provides yet more incentive and pressure for industry and Congress to get EB-5 legislation as soon as possible. The status quo at the Investor Program Office is not good for anyone, not even direct EB-5.
I considered a possible innocent explanation for falling I-526 completion rates: USCIS has been working since July on direct EB-5 cases, which they usually RFE before approving or denying, and the direct EB-5 inventory is relatively small. However, even RFE issuance has been falling in recent months, even as direct I-526 receipts keep coming in. IPO has been assigning a miscellaneous but decreasing assortment of I-526 up to but so far (since July) never passing November 2019 priority dates, despite available direct EB-5 inventory that was filed more recently. Why is IPO not processing new I-526 receipts, as an alternative to doing almost nothing with I-526? I copy below a table of unofficial data from my leaker at IPO. I have reached out to number of lawyers to ask for help to interpret what’s happening here, and what might be done to hold IPO to account.
Data from an unofficial source for I-526 RFE and NOID issued since July 1, 2021
Number of I-526 RFE+NOID sent from 7/21 to 11/21, by calendar year of I-526 priority date
Month that RFE or NOID was sent
2016
2017
2018
2019
2020
2021
TOTAL
Jul-21
4
4
33
36
0
0
77
Aug-21
1
0
9
89
0
0
99
Sep-21
2
3
9
104
0
0
118
Oct-21
1
4
3
59
0
0
67
Nov-21
2
9
0
26
0
0
37
And finally, in case publicity helps to shame IPO into action, here is a day-by-day accounting of actions completed by I-526 adjudicators in December 2021 so far, according to my fly-on-the-wall source. Attention IPO, YOU ARE BEING WATCHED! Wake up and look busier! I want to take a Christmas vacation too, but this doesn’t look good for an office with over 200 EB-5-fee-funded employees.
Working Day
Final I-526 Actions Completed
Intermediate I-526 Actions Completed
1-DecWednesday
Denied an I-526 filed in 2016 (after receiving an RFE response 13 months ago)
RFE sent to an I-526 filed in October 2019
2-DecThursday
None
RFE sent to an I-526 filed November 20, 2019
3-DecFriday
None
RFE sent to an I-526 filed September 2017 (after receiving response to a previous RFE 31 months ago) RFE sent to an I-526 filed September 2019
6-DecMonday
None
Notice sent to an I-526 filed in February 2017
7-DecTuesday
Denied an I-526 filed in September 2018
RFE sent to an I-526 filed March 2018 RFE sent to an I-526 filed November 20, 2019
8-DecWednesday
None
None
9-DecThursday
None
Notice sent to an I-526 filed in April 2019
10-DecFriday
None
None
13-DecMonday
None
None
14-DecTuesday
None
None
15-DecWednesday
None (re-issued an approval notice sent to the wrong address)
None
16-DecThursday
Approved an I-526 filed in 2017 Approved an I-526 filed in May 2021
RFE sent to an I-526 filed November 20, 2019 RFE sent to an I-526 filed November 20, 2019 Notice sent to an I-526 filed November 20, 2019
17-DecFriday
None
None
20-DecMonday
Denied an I-526 filed in 2017
RFE sent to an I-526 filed November 20, 2019
21-DecTuesday
Notice sent to an I-526 filed November 20, 2019
22-DecWednesday
None
None
23-DecThursday
None
None
24-DecFriday
Holiday
27-DecMonday
None
None
28-DecTuesday
None
None
29-DecWednesday
None
None
30-DecThursday
RFE sent to an I-526 filed July 2019
31-DecFriday
None
None
Looking forward to new legislation and new leadership at IPO to turn this situation around.
The December 2021 Visa Bulletin has a “Current” Final Action Date and Filing Date for China in the 5th Non-Regional Center preference category (C5 and T5). This means that in the month of December, direct EB-5 Chinese applicants who are documentarily qualified at the visa stage can proceed to get visas, regardless of priority date. Even more exciting, Chinese direct investors with I-526 approval can file visa applications (and probably I-485, though USCIS hasn’t updated its AOS page yet).
According to the visa bulletin methodology, the current final action date means that the number of Chinese direct EB-5 applicants who are documentarily qualified at the visa stage must be quite small – well under the total EB-5 visas currently available for China. That is no surprise, considering that direct EB-5 has historically accounted for less than 10% of EB-5 demand from Chinese, and that USCIS’s slow-walking of Chinese I-526 processing under the visa availability approach has prevented many applicants from reaching the visa stage. Shame on USCIS, for contributing to visa loss by not processing petitions! (The Visa Bulletin adds a warning note just in case the number of direct EB-5 Chinese applicants proves larger than Department of State expects: “if China-mainland born number use were to materialize at a level which could potentially jeopardize visa availability under the overall FY-2022 Employment-based Fifth preference annual limit it would then be necessary to once again impose a final action date.”)
The Visa Bulletin Section D clarifies how the situation will change if the regional center program is reauthorized soon. “If there is legislative action extending this category for December, the final action dates would immediately become “Current” for December for all countries except China-mainland born I5 and R5, which would be subject to a November 22, 2015 final action date.”
This is the first time that the Visa Bulletin has allowed direct EB-5 priority dates to move ahead of regional center dates at the visa stage. Presumably Department of State made the move for December 2021 to minimize visas simply going to waste during the on-going regional center program expiration, as I discussed in a previous post. At most a few thousand visas issued out-of-order to China-born direct EB-5 investors is a couple thousand fewer visas to go unused in FY2021. Chinese regional center investors are losing visa availability by the day during RC program expiration regardless, so I don’t see the announcement as much additional harm for them. Visas that don’t go to direct EB-5 applicants would likely otherwise just be lost to EB-1 this year or family next year. The visa bulletin change is good news for those few Chinese direct investors who are in a position to protect children by filing visa applications, or far enough along with paperwork to jump at the chance for final action.
When interpreting the Visa Bulletin, be sure to remember that EB-5 is a multi-step process. Visa Bulletin announcements reflect and pertain to Step 2 (visa application stage), not Step 1 (I-526 processing stage). A “current” final action date in December 2021 reflects low demand and high supply at the visa stage as of December 2021, and applies to people who have visa/I-485 processing nearly complete as of December 2021. It does not necessarily mean anything for people earlier in the process.
Consider that the Visa Bulletin was “Current” for China in April 2015, but a Chinese who filed I-526 in April 2015 was not “current” by the time he reached the visa stage, and indeed didn’t get a chance for a visa until March 2020. The Chinese investor who started the process in early 2015 waited five years for visa availability as a natural function of demand leading up to 2015 and supply since 2015 (and naturally regardless of supply/demand conditions that determined wait times for people finishing the process in 2015, and the visa bulletin in 2015).
Think about the analogous situation of gate announcements in the airport, and what such announcements mean for people who are not yet checked in and through airport security.
Here’s an airport with crowds at the gate and at check-in. Flights are overbooked and check-in is understaffed, but suddenly there’s a special gate announcement: all green shirts in the boarding area can get the seats on the flight. What should be the thought process of that green-shirted guy in the outside right corner, as he thinks about whether or not to bother going to the airport?
On the one hand, there’s a special deal right now at Gate 3, and green-shirted people in the boarding area are being given seats on the plane with no wait. This guy has a green shirt. On the other hand, the guy isn’t in the boarding area and can’t just go straight there – he has to check in and get through security first. His future experience at Gate 3 will not be determined by gate announcements at the time he walks in the airport door, but by gate announcements when he’s finally at the gate. He has to think about how long it will take to get ticketed and checked in and through security, and what conditions are likely to be at Gate 3 by the time he gets there. There aren’t so many green-shirts ahead of him, but large crowds generally, a question of how long the green-shirt-priority boarding will last, and apparently just one employee working on check-in. The guy will be wise to consider factors such as these, in addition to the current gate announcement, when calculating his potential wait to get a seat on the plane. Such factors are particularly important in the EB-5 context, with multi-year processing times and crowds in the thousands and tens of thousands.
Today’s “Chat with Charlie” on the November 2021 Visa Bulletin included a slide with another reminder of the cost of delay in regional center program authorization.
As the chart shows, the E5 (EB-5) category has a record 19,880 visas available this year (even higher than the 18,602 previously anticipated), and so far only about 368 applicants eligible to claim them. Those 368 applicants represent the inventory of direct EB-5 (C5 and T5) applicants at the visa stage as of September 2021, except for China-born applicants with priority dates more recent than November 22, 2015 (the China final action date in the October 2021 visa bulletin).
So close to visa relief, yet so far! FY2022 offers massive extra supply (thanks to roll-over from unused family-based numbers last year) but we’re held back from using it.
Hypothetically, if the regional center program had stayed authorized and USCIS and DOS worked efficiently enough to issue the almost 20,000 EB-5 visas available, then the EB-5 backlog at the visa stage could have been reduced by about 40% this year alone. (As of November 2020, DOS reported 50,936 total EB-5 applicants registered at the National Visa Center.)
The story is particularly sad for applicants from China, who could have theoretically gotten up to 15,000 leftover EB-5 visas this year (about 20,000 quota total minus about 5,000 visas required to satisfy rest-of-world demand at the National Visa Center). The loss is only theoretical (the backlogged Guangzhou consulate probably lacks capacity to schedule that many EB-5 interviews in a year even without the regional center issue), but still painful.
What needs to happen to minimize EB-5 visa loss this year?
One. The industry needs to make all possible concessions to get the regional center program reauthorized as soon as possible, so that RC visas can be issued again as soon as possible. Assuming that getting attached to the FY2022 Appropriations requires agreeing to reforms and conditions demanded by Senate Appropriations Committee Chair Leahy, then please agree. Regional center applicants represent over 90% of the EB-5 backlog, and lack legal basis to get visas until the law changes to provide reauthorization and/or grandfathering. Negotiators will not be thanked if they hold out too hard for the “bird in the bush” of visa relief in legislation, at a cost of losing the “bird in the hand” of tens of thousands of EB-5 visas available in 2021 and 2022 on a “use it or lose it” basis.
Two. USCIS needs to speed up processing of direct EB-5 I-526, so that at least direct EB-5 applicants can maximize visa use this year. DOS reports only 368 eligible direct EB-5 applicants at the visa stage as of September 2021. Meanwhile, there are probably at least 1,000 direct EB-5 investors with I-526 pending at USCIS (considering the total pending inventory of about 13,000). At previous productivity levels, USCIS could have already finished adjudicating 1,000 direct I-526 and sent them off with their families to the visa stage since June 30, thus adding another 3,000 or so applicants eligible for direct EB-5 visas. Instead, here’s what’s happened with I-526 adjudications since June 30, 2021 according to my leaker friend: July, 45 I-526 approved; August, 15 I-526 approved; September, 15 I-526 approved; October to date, 7 I-526 approved. This inexcusably low productivity needs urgent management intervention.
Three. The small number of EB-5 applicants eligible for visas in FY2022 could also increase if Department of State decided to move China Visa Bulletin dates just for direct EB-5. If DOS made China direct EB-5 (C5 and T5) “current” in the Visa Bulletin, that would make around 4,000 more Chinese direct EB-5 applicants eligible for visas even while the RC program is lapsed. That could effectively lower EB-5 visas loss in FY2022 by about 4,000 visas. In previous visa bulletin chats, however, Charles Oppenheim gave no indication that he would consider such a move. There’s a strong principle to keep the visa queue in order and avoid date progression that has to be corrected later with date retrogression. Moving China visa bulletin dates just for direct EB-5 would implicitly give up on regional center authorization happening any time soon, and displace regional center applicants from China. I guess DOS would not be eager to make that call. This puts us back to option one: do whatever it takes to get the regional center program reauthorized as soon as possible.
As a side note, see minute 36 of the Chat with Charlie linked above for a brief comment in response to my question about why, despite “current” Chart B for I5 and R5, NVC has been emailing regional center applicants that it “will not act on any new or pending EB-5 visa petitions as described above until further notice. Please do not submit any additional fees or forms to NVC.”)
Finally, warm appreciation due to Charles Oppenheim, Chief of the Immigrant Visa Control Office at Department of State. He is now retiring after 43 years, and I hope the government remembers and learns from his wonderful example. We need more civil servants like Charlie who are true experts plus committed to communication and process improvements. He spent decades doing everything he could as an individual toward the Herculean task of making U.S. immigration as fair, functional, and understandable as possible. Thank you Charlie for your generosity, integrity, and hard work! What will we do without you?
Visa availability is a key issue shaping discussion around EB-5 legislation and future potential. I have prepared a series of charts with data to help inform the discussion.
First, let’s look at who uses EB-5 visas. EB-5 gets just 7.1% of total employment-based visas, or about 10,000 visas per year. Lawmakers may assume that by making about 10,000 EB-5 visas available, they have incentivized about 10,000 EB-5 investments annually. That’s not the case. In FY2019, minor children received 41% of EB-5 visas issued, while just 36% of the quota went to EB-5 investor principals. In previous years, spouses and children received an even larger percentage of EB-5 visas. So long as the EB-5 quota must be shared between principals and their families, it can sustainably incentivize fewer than 4,000 investments annually. More investors do not fit within visa availability.
Clarifying that the @10,000 EB-5 visa quota applies to principal applicants would increase EB-5’s potential sustainable economic benefit by almost 300%. It could also reduce the EB-5 backlog by about 64%. I do not know if Congress would do this for EB-5. But certainly, an adjustment to visa allocation would be immensely and broadly beneficial — not least to the economy and job creation.
In the excitement of welcoming EB-5 investment following the economic crisis of 2008, many investors and issuers did not notice the hard limit on sustainable investor numbers created by the EB-5 quota. EB-5 investment – as reflected in I-526 filings – exceeded the sustainable level every year since 2011.
In the glory days of 2014-2017, EB-5 investment was at least three times more popular than it could afford to be under an annual visa quota of about 10,000, with only about 36% going to investors. That popularity was wonderful for the U.S. economy, which got tens of billions of dollars in investment and hundreds of thousands of jobs, but it was not good for immigration. Thanks to the mismatch between EB-5 demand potential and available EB-5 visas since 2011, EB-5 has ended up with a backlog of over 80,000 applicants still awaiting the visa incentive for their economic contributions.
I hear hopes that legislative reform could restore the EB-5 market to what it was a few years ago, such that regional centers could do business at previous levels. Look at the numbers, and think what will need to change to make that possible. EB-5 raised almost $8 billion dollars in 2015 alone, from enough investors to claim at least five years of EB-5 visas. If Congress and issuers want another $8 billion dollars a year from EB-5, they can (1) free up visas for the investors who contributed the first billions (an estimated 80K-100K visas are needed to clear the EB-5 backlog), and also (2) increase the EB-5 visa quota so that it can sustainably accommodate up to 16,000 investors a year (i.e. make the limit 3x to 4x higher than it has been). Or (3) recapture the past blissful ignorance of visa limits and backlog risk. At least two of those conditions must be met for EB-5 to possibly raise again the kind of investment that it did a few years ago. Otherwise, future expectations must be moderated. As it happens, expectations have generally been moderate for most of the EB-5 ecosystem. In 2016, DHS estimated that the average regional center project had 15 EB-5 investors, while large projects in 2016 were associated with just a few regional centers.
I highlighted per-country I-526 receipt numbers (in the years for which I have per-country data), because per-country limits also affect EB-5 visa allocation and market potential.
Under current law, EB-5 visas get allocated first to the earliest I-526 filing priority dates from each country, up to a country cap limit of about 700 visas per country. Then any leftover visas are available to the oldest priority dates regardless of origin. Country caps plus sharing visas with family means a sustainable level of just 300-400 investments per year from investors born in any one country. EB-5 demand from China vastly exceeded the per-country level several years ago (by 52x in 2015), then fell to almost nothing. EB-5 demand from China was relatively early, thus now at the head of the line for any visas leftover after organically low EB-5 demand from other countries. Here’s how per-country EB-5 visa allocation has happened so far, in practice.
Backlogged Chinese applicants – the oldest applicants and thus at the head of the line for any leftover visas — have gotten as many as over 8,000 EB-5 visas per year (back in FY2015 when EB-5 interest had not diversified), and at least over 4,300 visas per year (in FY2018 and FY2019, even after a demand increase from the rest of the world). Growing demand from Vietnam and India reached the visa stage by 2018/2019 (but not able to get visas beyond the country limit of around 700, since not near the front of the leftover visa line). All other countries combined have absorbed at most about 3,700 EB-5 visas per year so far.
The charts above have important messages for EB-5 issuers thinking about the future, and for past Chinese investors. Both should focus on the blue segment in each column – the numbers representing EB-5 visa demand from all countries below per-country limits. This number reflects market potential for EB-5 outside of backlogged countries, and is also the variable factor determining visa supply for China.
People trying to calculate future market potential may be concerned to see the “Other Countries” row hitting a plateau in I-526 filings and visa numbers since 2017, even in absence of any visa constraint. At the height of EB-5 program popularity and with the $500,000 investment level, the whole world outside China, India, and Vietnam has yielded fewer than 2,000 investors per year, and used fewer than 4,000 annual visas. Going forward, EB-5 issuers hardly want to all compete for only one to two thousand investors a year spread across miscellaneous countries — and that’s a best case assuming affordable investment levels. Issuers may be concerned to see Vietnam and India visa availability already used up for the next 7-8 years, according to Department of State estimates, and over 4,000 visas getting “leftover” every year to old applicants instead of leveraged to incentivize new investment. Thus the idea of setting aside 3,000 visas in categories reserved for new TEA applicants. With set-asides, total EB-5 market potential going forward could be not only <2,000 investors from non-backlogged countries with organically low EB-5 demand, but also another 1,000 or so investors (36% of set-aside visas) from the high-demand countries otherwise discouraged by backlog wait lines.
While the history of relatively low “Other Countries” demand is a concern for program potential, it’s an encouragement for backlogged Chinese applicants. The China visa wait time equation is China demand/leftover supply, so backlogged applicants welcome reductions to the new demand that reduces leftover supply. Wait time expectations for the China backlog will continue to improve if EB-5 demand continues to fall, as it has done since 2018/2019. China estimates will only get worse if EB-5 gets more popular than it’s ever been before in small countries. Or, if new EB-5 usage expands thanks to “TEA set-asides” providing an exclusive path around backlogs for high-demand countries. Consider the example of a past China-born investor who’s #50,000 in the queue for leftover visas. His wait time outlook changes by orders of magnitude depending on whether the 50,000-long queue before him is likely to advance at a rate of over 6,000 average annual visas available to China (the long-term average I predict, considering falling demand), or 50,000/4,000 (if rest-of-world demand stabilizes back at 2017/2018 levels), or 50,000/1,000 (if TEA set-asides divert 3,000 out of the 4,000 or so annual visas otherwise leftover to the backlog).
In light of these calculations, consider the cost/benefit of increasing total EB-5 market potential by about 1,000 investments a year via 3,000 set-aside visas for new TEA investors. Would that TEA incentive be worth the trade-off a 2x to 5x increase to backlogged Chinese investor wait time expectations? Especially when the market and incentive potential depends on finding welcome in the home of the painful backlog? And what if backlog relief (queue elimination) were proposed together with TEA set-asides (queue-jumping)? Such a combo proposal must logically presuppose that either the backlog relief provisions will fail, or the TEA incentive will be null. There’s no attraction to bypassing a painless queue.
I’ll close with a chart summarizing the current state of the EB-5 backlog (with and without derivatives), and with a slide that I made earlier this year for an AILA conference. The backlog chart reiterates how much good would result if Congress clarified that the @10,000 EB-5 visa quota applies specifically to EB-5 investors (principal applicants). The slide reflects an insight that came to me as I struggled to think through realistic EB-5 wait time predictions. “If EB-5 visa wait times are untenable, then something must give to reduce them. If not supply relief, will be demand failure.” If only legislative change can put us on the path of positive relief, and a sustainable and productive future. If that’s not possible today, let’s at least do what it takes to get reauthorization and protection for past regional center investment as soon as possible, to protect the possibility for future relief,
(For links to data sources referenced in this article, see my Timing Data Room page. For those who prefer to interact with charts in Excel, here you go. If the effort and resources that I put into these articles is worth something to you, please consider my PayPal contribution link.)
The Investor Program Office at USCIS continues to process direct and regional center I-829, even during the regional center program shutdown. However, the process and volumes need improvement. This post summarizes what I’ve been able to learn about recent I-829 processing.
In 2017, IPO showed what they can do with I-829 adjudications, if they try. Their efforts topped out at about 450 decisions per month in Summer 2017.
I-829 productivity plummeted into 2018/2019, suggested a nice recovery trend in 2020 even under pandemic conditions, and then started falling again in 2021.
This fiscal year has not looked good for I-829, with increasing processing times and every quarter showing lower productivity than the last.
The I-829 inventory reached a record-high 11,160 pending petitions as of June 30, 2021. I-829 are not subject to filing surges, since the volume of I-829 filings is limited by the quota limit on visas issued two years previously. Because demand cannot vary unpredictably, any inventory pile-ups can only be blamed on IPO inefficiency and poor planning.
On the USCIS Processing Times Page, the current I-829 “Estimated Time Range” starting at 35.5 months indicates that 50% of recent I-829 decisions were on cases younger than 35.5 months (i.e. filed since September 2018) and 50% of decisions were on cases that had been pending longer than 35.5 months.
And now for some unofficial input, pieced together from shared anecdotes and leaks.
I-829 petitions older than 35.5 months (which USCIS reports accounting for 50% of the few recent adjudications) represent about 25% of the total pending I-829 inventory.
Within the 50% of recent I-829 decisions made in less than 35.5 months, there was a large range of ages. The fastest recent I-829 approvals I’ve heard of were for petitions filed in September 2020 and approved just five months later. Such a short wait is uncommon, however.
In total, I’m told that there have been just over 600 decisions so far on I-829 filed in 2019 and 2020. That seems like an unfairly large number, considering that thousands of I-829 filed in 2016-2018 are still waiting for attention. However, 600 is still only 10% of total I-829 filed in 2019 and 2020, so 90% of pending I-829 with those recent dates are also still waiting for decisions. Reasons for below-average (<3 years) wait times can include luck, approved expedite requests, and Mandamus actions (which can be filed by groups of similarly-situated plaintiffs, as well as by individuals).
Mandamus litigation for I-829 has succeeded in some cases. USCIS can hardly support an argument that they virtuously follow FIFO discipline and thus can’t decide some cases earlier than others, since their internal records would contradict that claim, and their own Processing Time Report “Estimated Time Range” indicates that they have been adjudicating I-829 with dates ranging from earlier than 2016 to later than 2018. USCIS can hardly support a claim that they’re doing the best they can with I-829, considering that they’ve reported falling I-829 adjudication numbers every quarter this year, and are operating well below historical performance. So long as processing conditions are indefensible in fact, there’s basis to ask a judge to compel adjudication. (Hint USCIS: you’ll save so much on lawsuits if you just step up and provide reasonable processing to everyone.)
There’s a large reported range in the time it takes USCIS to collect and report biometrics (fingerprints). Most commonly it seems to happen within five months, but occasionally takes years.
What can we expect for future I-829 processing times? The determining factor is IPO productivity in I-829 adjudications, which follows from the resources that they choose to commit to I-829, and the procedures that they choose to implement.
As of last official report (FY2021 Q3), IPO had 11,160 pending I-829 as of June 30, 2021, and I-829 productivity was 448 decisions in three months, or average 150 decisions/month. If IPO continues to process I-829 at a rate of about 150/month, then it will take 11,160/150=75 months to clear the current pending inventory. In other words, the average I-829 filed on June 30, 2021 can expect a 6-year processing time based on current conditions, unless IPO productivity improves from its current level. IPO has the resources to get better. If IPO returned to Summer 2017 performance and consistently averaged 450 I-829 decisions per month, that would change the equation to 11,160/450=25 months expectation to reach June 2021 petitions. A two-year processing time is still too long, but would be far closer to adequate than the six years promised by current performance. On the other hand, if IPO productivity continues the past year’s trend and keeps getting worse, then wait time expectations would get even longer than six years. Obviously that would be no one’s definition of adequate service. Take note USCIS: I-829 needs an intervention and soon.
There’s every reason for I-829 productivity to improve.
The legal obligation is there. To quote from the 2020 Final Fee Rule: “DHS acknowledges its obligation to adjudicate Form I-829 filings within 90 days of the filing date or interview, whichever is later. See INA section 216(c)(3)(A)(ii), 8 U.S.C. 1186b (c)(3)(A)(ii).”
The path is clear. USCIS is a fee-funded agency, and required to plan and set fees “to ensure that USCIS has the resources it needs to provide adequate service to applicants and petitioners” (again quoting from the 2020 Fee Rule). I-829 service requirements are entirely predictable; the number I-829 filings is a function of the number of principal applicants admitted under the visa quota two years previously. The Fee Rule process allows USCIS to set whatever filing fee it needs to recover the cost of providing adequate service for this predictable workload. There’s just no excuse, from a business planning perspective, to not be providing adequate service for I-829.
The resources are available. At last report (in November 2020), the Investor Program Office at USCIS had a staff of 232 people. IPO has only three forms to adjudicate: I-526, I-924, and I-829. During the regional center program expiration, IPO cannot adjudicate any I-924, or any regional center I-526. What is left for 200+ EB-5-fee-funded employees to do but adjudicate I-829? Surely we must see more I-829 progress soon, unless EB-5-fee-funded resources are not being used to adjudicate EB-5 forms.
For whose sake should Congress act on EB-5 legislation? The discussion tends to focus on the future of the regional center program, and the question of potential and protections for future EB-5 investment. However, past EB-5 investment must also weigh on the discussion. Regardless of its future, EB-5 certainly has a past: tens of thousands of foreign nationals who heeded the EB-5 incentive created by Congress to invest in job-creating U.S. business through the regional center program, but who do not yet have the offered incentive. Tens of thousands of past regional center EB-5 applicants do not yet have visas. Their on-going process depends on legislation to reauthorize the regional center program, or at least to offer existing investor protections in case of expiration.
Why are people whose EB-5 investment was made and spent many years ago still a factor in today’s immigration policy discussion? Because: they haven’t immigrated. Contrary to popular belief, EB-5 investment does not purchase a green card. EB-5 only allows foreigners to potentially qualify for green cards in the future based on job creation resulting from qualifying investment.[i] The “EB” in EB-5 stands for “employment-based” not “investment-based.” The ultimate condition for immigration success is not satisfied at the beginning of the process, with the initial investment, but at the end of the process, with proven job creation. This process takes at least five and up to over 20 years. Meanwhile, in-process regional center investors who do not yet have visas represent at least $23 billion dollars currently at work in the U.S. economy.[ii] Table 1 quantifies the population of regional center EB-5 investors and applicants who are currently already in the EB-5 immigration process.
Table 1. EB-5 Process Timing and Population as of 2020
EB-5 Process Stage
EB-5 investor received a visa yet at this stage?
EB-5 investment must be deployed at this stage?
Estimated Timing as of 2020
Estimated number of regional center investors at this stage as of 2020
Estimated number of regional center applicants (investors + family) at this stage as of 2020
Start: make investment and initiate the immigration process
Qualify for conditional permanent residence (I-526 + visa application)
Finish: Proven job creation and permanent residency
YES
Not required for immigration
Total
5-20+ years
Over 55,000
About 119,000
When the regional center program expires, then the 80,000+ regional center investors and applicants who do not yet have conditional permanent residence status lose eligibility for an EB-5 green card. This hard fact under current law is evident today, as USCIS is not accepting or acting on Form I-526 or I-485 from regional center investors, and Department of State is not issuing visas to regional center investors. (People who have conditional permanent residence status still have opportunity to complete the immigration process and remove conditions. USCIS continues to accept and adjudicate regional center I-829.) Since June 30, 2021, the immigration process for regional center EB-5 investors has just been frozen, waiting for Congress to act. If Congress does not act, the process will eventually unfreeze, and petitions and applications will be denied. This ends the EB-5 immigration hope but not the investment, which is still held by private parties who can hardly be ordered to suddenly undeploy and return the funds. If the chance for visas is lost, that’s a multi-billion dollar disaster waiting to happen for deployed investment. Switching midstream from regional center to direct investor status is unfortunately impossible due to indirect job creation and material change. Legislation is the only path forward to protect the program as a whole, or at least its past investors.
The moral of the story: (1) industry advocates, remember the size of the constituency that depends on your fiduciary duty, as you gamble for RC program authorization, and (2) investor advocates, push for legal changes that would at least protect in-process investors from mid-stream RC program changes. AIIA has been working for a Foreign Investor Fairness Protection Act (FIFPA) that would provide such protection, and is currently raising funds for a lobbying effort to push the bill.
[i] USCIS Policy Manual, Volume 6 Part G Chapter 1(A): “The Immigration and Nationality Act (INA) makes visas available to qualified immigrant investors who will contribute to the economic growth of the United States by investing in U.S. businesses and creating jobs for U.S. workers. Congress created this employment-based fifth preference immigrant visa category (EB-5) to benefit the U.S. economy by providing an incentive for foreign capital investment that creates or preserves U.S. jobs.” In contradistinction to some “golden visa” programs around the world, the U.S. EB-5 program is not a “cash for passports” arrangement. For more background see “The Changing Landscape of Immigrant Investment Programs” (October 25, 2019) by Congressional Research Service. https://crsreports.congress.gov/product/pdf/IF/IF11344
[ii] EB-5 investment must remain sustained in the U.S. enterprise and deployed (“at risk”) at least through the end of the investor’s conditional permanent residence period. USCIS Policy Manual Vol. 6 Part G Chapter 5(A)2. Approximately 46,000 regional center investors have not yet reached the end of the conditional permanent residence period, as calculated in Table. 1. Each of these investors must have invested a minimum of $500,000. 46,000x$500,000=$23 billion
[iii] The process to qualify for conditional permanent residence starts with I-526 petition processing, and ends with a visa application and wait for visa availability. I-526 processing has taken 1-5 years, according to processing time reports from USCIS. https://www.dropbox.com/s/dfa4ifgop1vhm63/IPO%20Times%20Dates.xlsx?dl=0 For countries with no visa wait, the visa application normally takes six months or more. Countries with historically high EB-5 demand face a long wait for visa availability at this stage. As of October 2020, Charles Oppenheim, Chief of the Visa Control & Reporting Division at the U.S. Department of State, estimated wait times for EB-5 visa availability for investors filing I-526 “today.” The longest wait time, for China-born investors, was estimated at 17.2 years. The wait times for Vietnam and India were estimated at 7-8 years. See slide 10 of “Part 1: A discussion with Charles Oppenheim” (November 19, 2020) 2020 IIUSA Virtual Forum https://iiusa.org/wp-content/uploads/2020/11/Virutal-Industry-Forum-Visa-Update.pdf
[v] Charles Oppenheim, Chief of the Visa Control & Reporting Division at the U.S. Department of State, estimated a grand total of 83,003 prospective EB-5 visa applicants in process as of October 2020. This estimate includes applications on file at the National Visa Center and estimated applicants associated with I-526 petitions pending at USCIS. It does not include EB-5 applicants with pending I-485 status adjustment petitions: a population in the thousands. Over 95% of the estimated total EB-5 applicants are likely associated with regional centers, judging by past experience. (The regional center category accounted for 95% of EB-5 visas issued from 2012 to 2019.) See slide 9 of “Part 1: A discussion with Charles Oppenheim” (November 19, 2020) 2020 IIUSA Virtual Forum https://iiusa.org/wp-content/uploads/2020/11/Virutal-Industry-Forum-Visa-Update.pdf
[vi] The Conditional Permanent Residence Stage is defined as two years from the date that the green card was granted. USCIS Policy Manual Vol 6. Part G Chapter 5
[x] As of March 30, 2021, USCIS reported 10,309 I-829 petitions pending, of which over 90% were likely filed by regional center investors. (91% of EB-5 visas issued 2010 to 2017 were issued to EB-5 investors.)
[xi] Assumes that the ratio of total visas to investor visas is about the same at Stage 3 as Stage 2.
Reauthorization Update: On Wednesday 8/25 at 12PM EDT, the EB-5 investor organization AIIA will hold a webinar to update stakeholders on efforts for legislation to reauthorize the regional center program and protect investor interests. Register here to participate live in the AIIA webinar (or check the Youtube channel later for a recording). See also the most recent AIIA newsletter. AIIA has been unusually open about sharing whatever information they can gather from Congressional staffers and industry contacts about EB-5 legislation, and I recommend the resource. I am not a primary source for advocacy info or opportunities.
Regulations Update: USCIS has indicated that it will appeal the Behring Regional Center decision, which restored the old $500,000 investment amount and TEA rules. For more background, see this EB5 Investors Magazine article and this article byBehring Regional Center. It seems clear that the EB-5 investment amount will not change by regulation any time soon, since court cases take time. USCIS will likely continue to accept I-526 based on $500,000 for some time. However, will USCIS go on to approve I-526 filed today at the $500,000 level? Discuss with your lawyer what will happen to eligibility for pending I-526 if USCIS wins the appeal, and the new regulation thus not vacated after all.
Processing Update: Meanwhile, I continue to get real-time updates that IPO has been handling only a handful of I-526 petitions per day. But thanks to the lack of FIFO discipline, IPO is assigning new as well as old cases, and a number of I-526 filed in late 2019 are already getting reviewed. So some direct EB-5 petitioners will enjoy relatively short I-526 processing times – a welcome development so far as it goes. EB-5 integrity would get such a boost if we could expect that every I-526 would get USCIS attention in months, not years! So far, the official USCIS Immigration and Citizenship Data page reinforces what my leak says: that productivity at the Investor Program office has still not improved under the Biden administration, and in fact has gotten worse for I-829 as well as I-526 through June 2021 — according to the FY2021 Q3 update. I continue to wait for new leadership at IPO to address this trend. (I am not reporting on receipts in the FY2021 Q3 USCIS report, because I note an error. The report is missing hundreds of I-526 receipts that were received during the reporting period on June 29 and 30, but apparently physically entered into the case tracking system in the first days of July, outside the reporting period.)
At last report (in November 2020, the last time IPO deigned to have a stakeholder engagement of any kind), the Investor Program Office at USCIS had a staff of 232 people. What are these people doing, especially now during the regional center program lapse when USCIS decided that “we will not act on any pending petition or application of these form types that is dependent on the lapsed statutory authority.” Are IPO staff busy making progress with the direct EB-5 inventory and I-829, or are they doing something else in or out of the office?
Before I share some inside information on this question, consider the workload facing IPO’s staff of 232 people. Current IPO management is unknown (former Chief Sarah Kendall having left back in November, and a replacement not yet announced), but if you were management, how would you allocate IPO’s staffing and fee revenue resources? What level of processing productivity would you expect?
The only official window into IPO productivity comes from quarterly reports with limited data published after months of delay on the USCIS Citizenship & Immigration data page. I chart these data reports to track trends in IPO resource allocation and productivity.
In my frustration at USCIS’s limited and delayed data reporting, I also welcome leakers: confidential sources within USCIS who can share information that the public should know. I will now share some recent I-526 information from a source that I cannot name but believe to be solid.
I-526 Data Leak: July 2021
In the last week of June 2021, between the Behring lawsuit decision (June 22) and the regional center program expiration (June 30), USCIS received 405 I-526 filings.
From the 4th of July holiday until the end of July (July 6-30), IPO issued 16 I-526 approvals and 32 denials. At the same time, IPO issued 77 RFE and NOID on I-526 cases. The following is the priority date distribution (calendar year) of these actions: 2015 2%, 2016: 13%, 2017: 16%, 2018: 38%, 2019: 31%. The priority date range was from September 2014 at oldest to July 2019 at youngest.
In July 2021, 16 people withdrew their I-526 petitions.
As I look at these numbers, here’s what strikes me as significant.
More I-526 were filed in the last week in June 2021 than in the entire previous year and half. That shows strong demand for EB-5 at the $500,000 minimum investment, a high level of industry preparation for the Behring court win, and optimism about regional center program prospects.
I-526 adjudication volume was extremely low after 4th of July: only 48 decisions and 77 notices in 21 working days – in other words, fewer than 6 total actions per day on average, and just over 2 decisions per day on average. We’d feared that one consequence of regional center program lapse on June 30 could be IPO decision to move resources away from I-526 adjudication, and that appears to be happening, at least so far. In January to March 2021 IPO adjudicated 882 I-526, and I thought that was extremely low. But that was an average 14 decisions per working day, in addition to RFEs. And now they’re down to barely over 2?
USCIS reported in the 2019 Fee Rule that adjudicative “touch time” for I-526 is less than 9 hours per form on average. If that report is accurate, how few people must have been assigned to I-526 in July 2021, to result in an average of only 2 decisions and 6 total actions per working day? Can it be that with 232 people on staff, funded at least half by I-526 fees, that IPO had fewer than 10 people assigned to I-526 cases in the month of July? I have not been informed about IPO staffing allocation decisions, but feel that the public has a right to know whether a fee-funded agency is using fees to provide the paid-for service.
I have not been told yet how the I-526 inventory divides between direct and regional center cases, but by historical averages it’s possible that only about 1,000 direct I-526 remain to be adjudicated. IPO adjudicated that many cases per month in 2016-2018, and at least adjudicated that many per quarter until recently. But if July 2021’s productivity were the new normal, with only about 2-3 decisions per working day, then even 1,000 I-526 would take forever to process. I have not yet been given I-829 data or staffing data, so I can’t tell whether the I-526 loss is temporary, and whether it is balanced by gains for I-829. If 232 IPO staff are mostly not processing I-526, and not processing I-924, they must be doing something EB-5-related, I hope? (Sarah Kendall attributed part of the huge IPO productivity drop in 2019 to “temporary assignment of IPO staff to other agency priorities” — i.e. staff sent outside to work on non-EB-5 cases. That was an inexcusable use of EB-5 fee-funded resources, and I hope that’s not happening again now.)
I note that 2/3 of IPO’s actions in July 2021 were sending RFEs and NOIDs, supporting my anecdotal observation that IPO rarely decides a direct EB-5 I-526 these days without sending an RFE first – often, an RFE that basically requests I-829 evidence. This practice naturally slows the process and reduces volume of completions.
If, as USCIS claims, “We generally process cases in the order we receive them,” then we’d see a fairly tight date distribution in I-526 actions. The July 2021 data, with actions distributed over I-526 from 2015 to 2019, reinforces what we can also see in the USCIS Processing Times Report “Estimated Time Range”: that I-526 processing is hardly FIFO in practice.
I was not told whether IPO is still using the visa availability approach for I-526, even now with the RC program expiration already drastically reducing the active I-526 inventory. It would be interesting to know whether any/many of the older I-526 actions in July 2021 were on Chinese cases. I do note that most denials in July were on the oldest cases, reinforcing the intuitive sense that delayed adjudication means higher adjudication risk.
USCIS does not normally report withdrawals, but for public policy reasons we need to know how many people are choosing to exit the program, even after having made investments. I will continue to track this number with interest and concern.
The details reported in this post are a fraction of what we’d like and need to know about what’s going on behind the scenes at IPO. I am thankful for whatever I can get, and will continue to make periodic (probably, monthly) reports so long as I can keep my sources. I hope that public exposure can help to encourage accountability and performance at IPO. Going forward, IPO civil servants, please act like you are being observed and might be accountable to the public.
And for anyone at USCIS/IPO who sees this post, I welcome you to join my public-spirited leaker community. Reach out to me by phone or on Telegram at (626) 660-4030, and let’s chat. The list of areas where USCIS should but doesn’t have public transparency include IPO leadership, I-829 performance, IPO staffing allocation, IPO training, the country composition of the I-526 inventory, the distribution of I-526 receipts by regional center, reasons for increasing denial rates, and I-485 processing for EB-5 cases, to name a few priorities. I would love to hear and share confidentially whatever you can tell me in these areas, for the good of program integrity. And ideally: encourage leadership to start holding public EB-5 stakeholder meetings again, publish timely data for everyone on the USCIS website, and perform in a way that does not justify reproach and desperate measures to get basic information.
I am happy to see that leadership change is starting at the top anyway, with Ms. Ur. M. Jaddou now confirmed as USCIS Director. Her first statement this week sounds great: “As USCIS director, I will work each and every day to ensure our nation’s legal immigration system is managed in a way that honors our heritage as a nation of welcome and as a beacon of hope to the world; reducing unnecessary barriers and supporting our agency’s modernization.”
Attorney Carolyn Lee hosted an EB-5 Program Sunset Pop-Up Event, on 6/30 at 2:00 PM ET. I will link to a recording here when available
AIIA is hosting a Town Hall on July 1 at 6 pm ET to provide EB-5-investor-focused updates on what’s happening and solicit investor input for EB-5 reform negotiations. UPDATE: Recording available on YouTube.
IIUSA is hosting a webinar on June 7 at 12 pm ET to discuss reauthorization efforts and the IIUSA advocacy plan. UPDATE: Recording available on YouTube.
EB5IC and the China-focused EB-5 investor advocacy organizations are not offering any public engagement so far as I know, but I’ll update this list if I hear anything new. (UPDATE: EB5IC is doing some Sarah-Kendall-style public engagement, and emailed video on July 1.)
Regulations Update
The government has not yet reacted publicly (that I can find) to the court decision on June 22 vacating the EB-5 Modernization Regulation. The Code of Federal Regulations 8 CFR 204.6 at ecfr.gov (updated as of June 25), the USCIS Policy Manual Vol. 6 Part G, and the EB-5 page at USCIS.gov still say that the minimum EB-5 investment amount is $1.8 million, or $900,000 in a TEA designed by USCIS. EB-5 lawyers agree that the June 22 court win did indeed return the EB-5 investment amounts to $500,000 or $1 million in a State-designated TEA, and that I-526 can be filed at this level so long as the June 22 change still applies. The expert lawyers do not agree on the probability that USCIS will go on to approve I-526 filed at the lower investment level, or how and how soon and for whom the rules may change back again. I’ve started a table lining up the variety of opinions I’m seeing/hearing on regulations-related questions, and may publish it later once I have more feedback. A few expert reference articles available so far:
EB-5 Form Processing Updateand FY2021 Q2 Processing Data
On the positive side, USCIS says they welcome the extensive public feedback on “Identifying Barriers Across USCIS Benefits and Services.” A USCIS Public Engagement email last week said that: “We greatly appreciate all the feedback submitted and are actively reviewing the comments we received. We will use this feedback to inform future policy changes and operational improvements. We remain dedicated to providing all stakeholders with opportunities to share meaningful feedback and to engage with the agency.”
And now for the rest of the news. The Investor Program Office and EB-5 processing have not shown improvements yet. Last week, the USCIS Citizenship & Immigration Data page was updated with data reports for FY2021 Q2 (January to March 2021). Processing volume in this quarter remained low – even worse than in the last quarter under the Trump administration. This is not the trend I wanted to see. I-526 receipts also remained low, though a bit higher than we had thought: total 189 for October 2020 to March 2021. I was glad to see that I-829 receipts caught up in January to March, compensating for an artificially low previous quarter.
USCIS reported 13,044 pending I-526 as of March 31, 2021. Considering historical trends, we can assume that over 90% of those are regional center I-526 that cannot be processed once the regional center program lapses starting on July 1. A Bloomberg Law article from June 25 “Backlog of Investor Visa Applications in Limbo as Program Dies” included this quote: “The Homeland Security Department subagency can’t yet say what the fate of those EB-5 applications are, USCIS spokesman Joe Sowers said Friday.” That’s over 10,000 regional center investors and their families and over 5 billion dollars in limbo associated with pending I-526 alone, not to mention over 70,000 regional center applicants at the visa stage. As industry negotiators keep up their “my way or nothing” positions, they must think about the implications associated with that amount of money in the economy, if not that number of tender individual human beings dependent on regional center program authorization.
Mandamus litigation has offered hope to combat the EB-5 processing slowdown since 2018. But the hope is limited. The above-linked Bloomberg Law article reports (though without citing sources) a high rate of denial and dismissal for mandamus lawsuits. The article indicates that federal courts threw out two of four EB-5 mandamus actions in 2020 and two out of three suits in January and February. One suit in May had a partial victory for the plaintiffs, while three were denied in June. “In many of these cases, judges cite a set of factors in a 1984 case—Telecommunications Research and Action Center v. FCC—that set standards for when courts ought to compel agencies to take action in the event of an unreasonable delay. The opinions often cited the concern that siding with the plaintiffs would send a signal that litigious applicants for the program can jump to the front of the line.” Ideally someone will soon address the across-the-board slowdowns and productivity loss at the Investor Program Office, as illustrated in the above charts, so that individual petitioners do not have to fight individually for treatment that everyone deserves.
What will happen to EB-5 processing during the regional center program expiration/lapse? If we assume that about 1,300 pending I-526 are direct petitions, that IPO continues processing I-526 at a rate of 900 petitions per quarter, and that the RC program stays expired for months to come, then the direct I-526 inventory could all be adjudicated this year. Or maybe IPO will eventually respond to changes by moving staff over to I-829 adjudications, in which case I-829 rather than direct EB-5 may benefit from the RC program lapse/expiration. With so many moving parts, prediction is difficult.
The USCIS Citizenship & Immigration Data page has published performance reports for FY2021 Q1 (October to December 2020), with data for EB-5 form receipts and adjudications. Since the full reports are formatted to be almost unreadable, I clipped out content most significant to EB-5 from the All Forms report and I-485 report. These summaries are followed by notes and charts that put the FY2021 data in context of previous reports.
General Comment
Overall, the numbers for October 2020 to December 2020 show low receipts, low productivity, and a faulty record-keeping system. But this time period represented dark pandemic days, and lingering Trump administration leadership on immigration. So I do not consider the period characteristic, or necessarily indicative for future performance. I am not ready to predict the current/future trends until I hear from new USCIS leadership, and start to see performance data for this year.
Report Format
For the first time, the All Forms performance report adds columns for total processed petitions, and processing times. That’s nice.
As with the annual report, the quarterly-report processing times are significantly lower than the median times reported day-by day for the same period. (For example the USCIS Processing Times Page reported median times for I-829 of 35 months in October, 36.5 months in November, and and 33 months in December, per my log of contemporary reports. And now this quarterly report states that 50% of I-829 processed October to December 2020 took less than 31.5 months to process.)
I-526Performance Data Notes
The I-526 data reported for FY2021 Q1 shows that USCIS struggles to count inventory, even after taking over three months to generate the report.
We don’t know how many I-526 were filed in Q1, because the report gives a letter “D” in place of I-526 receipts. The report code explains that “D” means “Data withheld to protect applicant’s privacy.” Another definition could be “Data withheld to disguise our counting errors.” In theory, last quarter’s period-end pending petitions plus this quarter’s receipts minus this quarter’s approvals and denials (which also includes withdrawals) should equal this quarter’s period-end pending petitions. If that equation gives a false result, then something’s wrong with USCIS data reporting. Doing this equation quarter by quarter (as I do in a table below), shows discrepancies every quarter. Using the equation to solve for receipts in FY2021, I see that “D” masks a negative number: -194 to be exact. EB-5 demand would plausibly have been low October to December, but can’t have been actually negative! So USCIS must have miscounted approvals/denials or pending in Q1, or possibly compensating for errors in previous quarters. This quarter’s I-526 report is not very helpful, except as additional ammunition for Mandamus lawyers demonstrating to judges that USCIS self-reporting is confusing at best and unreliable at worst.
I-829 Note
I-829 receipts were down significantly in FY2021 Q1, and calendar year 2020 overall. In theory, I-829 filings to remove conditions should be fairly steady, reflecting the steady pace of EB-5 visa issuance two years previously. When I-829 receipts fall, I worry that some disaster befell the cohort of EB-5 investors who entered the U.S. 21 months earlier. I want I-829 numbers to show success through to the EB-5 finish line. (Update: BOS InvestorVoice makes a good point in the comments: USCIS struggled in 2020 to issue I-829 receipt notices, with mutliple I-829 applicants reporting severe delays just to get the notice. That could explain low recorded receipt numbers even if I-829 submissions were in fact as high as ever.)
On the bright side, I-829 processing productivity only fell a little in Q1, and the approval rate remained high (94%).
Investor Program Office Productivity
Between Q3 and Q4 2020, IPO had exhibited an encouraging 16% increase in number of forms processed (I-526 plus I-829). Q1 FY2021 regressed again, with 7% fewer forms processed than the previous quarter. Sarah Kendall left IPO after November 2020 according to her LinkedIn page, so FY2021 Q1 represents the end of her direct influence. I warmly hope that future FY2021 reports will show the positive effect of new leadership at IPO (though Kendall still looms as USCIS Regional Director). IPO has so much room for productivity improvement, considering that they used to regularly process three times more forms with fewer staff than they have today.
I-485 Note
I do not usually report I-485 data because USCIS does not itemize EB-5-based I-485. The report just gives aggregate numbers for all EB category visas. However, this post highlights employment-based I-485 performance data specifically for the California Service Center, which I understand is responsible for most (all?) EB-5 I-485 decisions, and which is apparently having a meltdown. In FY2021 Q1, the California Service Center approved a record-low only 38 Employment-Based I-485 per the report (having previously averaged 300-400 EB approvals per quarter), and ended with a record-high backlog of 5,027 Employment-Based I-485 pending. Ms. Mendoza Jaddou, please hurry up and get confirmed as USCIS Director, and then find out what’s going on at the California Service Center. No one wants to see the processing times that will result if 5,000+ Employment-based I-485 continue to get processed at a rate of fewer than 100 forms per quarter. If indeed EB-5 I-485 are all ultimately forwarded to the California Service Center for adjudication, how about reconsidering that decision in light of recent performance? Too many EB-5 visas have been lost already.
Plug
Collecting and processing EB-5 data has become increasingly difficult and time-consuming. If my analysis helps you, please consider a PayPal contribution to support my work. Thank you!
I am not currently promoting my I-526 timing estimate service, due to limited recent information. After I see 2021 data and hear from new leadership at IPO, I will be better able to judge the current trend and make educated estimates about the future.
Today DHS published Request for Public Input: Identifying Barriers Across USCIS Benefits and Services. This request aims “to better understand and identify administrative barriers and burdens (including paperwork requirements, waiting time, and other obstacles) that impair the functions of the USCIS process and unnecessarily impede access to USCIS immigration benefits.” Thank you Secretary Mayorkas! Yes, we have input for you.
Click on the above link for instructions for how to submit effective comments. Note that the comment due date – originally written in error as today – has been updated to May 19, 2021. If anyone would like to hire me for EB-5-specific comment writing service, I am available and bring a successful track record. The Final Rules on the EB-5 Modernization Regulation and the 2019 USCIS Fee Rule both quote extensively from comments that I submitted on the proposed rules. My strategy is to be rigorous and draw on my massive repository of data and citations.
Reauthorization
The best news I have on the push for regional center program authorization is that EB-5 giant Robert Divine has published an article in EB5 Investors Magazine: “The problem with EB-5’s reliance on temporary legislation.” In just 600 unminced words, Mr. Divine explains the reauthorization situation and what’s at stake for investors, industry, and the country. If I were writing to my representative to press for reauthorization, I would attach Mr. Divine’s article as clear, honest, and authoritative background reference. If I shared anything on social media, I’d share this article as a call to action. And I’d like to give a standing ovation to this conclusion from the article:
Congress should at least provide that the regional center legislation in effect at the time an investor files Form I-526 will remain in place throughout those waits until the investor can remove conditions on permanent residence through adjudication of Form I-829. The United States is a country of laws designed to protect reasonable expectations. This nation should not be encouraging people to invest to create jobs for us without protecting the reasonable expectations of investors who take the risk of such investment.
I continue to update my Reauthorization page as I hear of news and resources. Most recently, I noted that the text of S.831 has finally been published at Congress.gov.
RFEs and Litigation
The April 2021 edition of EB5 Investors Magazine is generally rich in helpful articles. I particularly note my article, and multiple articles on recent trends in EB-5 litigation.
The Visa News page on the Department of State website includes several significant updates.
Apr 6, 2021 Visa Services Operating Status Update This post confirms that as of April 2021, EB-5 is still not a priority for interview scheduling. “Posts that process immigrant visa applications are prioritizing Immediate Relative family members of U.S. citizens, including intercountry adoptions, fiancé(e)s of U.S. citizens, and certain Special Immigrant Visa applications.”
“During CY 2020, the median time for an approved I-526 petition to reach NVC from USCIS was 126 days…. NVC does not have a way to proactively search USCIS systems for approved I-526 petitions that have not been electronically transferred to NVC.” (DOS here quantifies the problem of delays by USCIS in forwarding I-526 approvals to NVC, and suggests there’s not much DOS can do about the problem.)
“As of January 25, 2021, NVC’s queue of documentarily complete employment-based or family-sponsored cases (including family preference and immediate relative cases), with a visa number available, waiting for an immigrant visa interview is: Family-Sponsored: 312,782 cases; Employment: 11,504 cases; EB-5: 3,930 cases.” (That huge family-based number is alarming, because family cases are getting priority over employment cases as noted above. The EB-5 number is interesting, because it tells us how many consular cases are ready to go based on how far the visa bulletin has already moved. The total number of EB-5 cases registered on the immigrant waiting list at NVC, which includes those without visas available yet per the visa bulletin, is much higher of course.)
The May 2021 visa bulletin has announced another “Chats with Charlie” to take place on April 22, 2021 at 1:00 p.m. EST at https://www.youtube.com/user/TravelGov Questions can be emailed to VisaBulletin@state.gov ahead of the event with “Chat with Charlie Question” in the subject line. The previous visa bulletin live chat from March 17 was incredibly helpful and informative, and I’m looking forward to the April iteration.
Processing Time Report Update
The USCIS website has long had a page titled “Historical Average Processing Times” that I used to ignore because it reported a meaningless and misleading data point. Instead of reporting processing times, this “processing times” page used to report “average age of all petitions currently pending.” Average inventory age combines processed and unprocessed petitions, naturally falls with an influx of new receipts, and does not directly reflect on processing times. This misleading page was probably heavily referenced by people filing Mandamus complaints, because average inventory age is often less than processing times. And now, USCIS has finally gotten around to fixing the page.
Since March 31, 2021, the Historical Average page is now titled “Historical National Median Processing Time (in Months) for All USCIS Offices for Select Forms By Fiscal Year,” and uses a revised method. Instead of reporting average inventory age, the page now reports median age specifically of processed forms, consistent with the method used for the Case Processing Times page. “Processing times are defined as the number of months it took for an application, petition, or request to be processed from receipt to completion in a given time period. …The number of months presented is the median. It represents the time it took to complete 50% of the cases in a given time period.” This page provides median times across a full year, which are interesting when compared with median times reported monthly for those same years (as recorded in my on-going log). For example, the Historical Average page now reports a median I-526 processing time of 19 months across FY2019 adjudications, while monthly I-526 processing time reports from October 2018 to September 2019 indicated median times ranging from 20 to 27.5 months – never as low as 19 months. Hmmmmm….. After all, the revised Historical Average page continues to provide ammunition for Mandamus lawyers seeking to show that the monthly USCIS processing times reports are misleading. The annual averages also starkly illustrate that the I-526 visa availability approach, instituted in 2020, did not bring down the average age of adjudicated cases as intended by USCIS.
Historical National Median Processing Time (in Months) for All USCIS Officesfor Select Forms By Fiscal Year: Fiscal Year 2017 to 2021 (up to March 31, 2021)
The most compelling processing time evidence comes from individual experience. I appreciate EB-5 investors who share their experience and case status analysis in blog post comments. And I appreciate the suggestion for a single static place to collect these reports for common reference. I’ve made failed attempts at this in the past (including starting a forum that I didn’t have time to moderate, and setting up a Google form whose link no one can ever find). But I will continue to think how I can best facilitate info sharing. FYI, from my various information sources, November 2018 continues to be the filing date I most commonly see on I-526 decisions.
All sections of the Department of State’s Report of the Visa Office 2020 are now available. In the past, I have analyzed reports of EB-5 visa issuance by country as an indicator of EB-5 visa demand. But for 2020, the numbers tell a story about visa processing constraints. The distribution of EB-5 visas issued in 2020 by country, type, and path does not reflect who wanted visas, but who was lucky to get visas despite massive COVID-19 restrictions and processing bottlenecks.
I think the headline in 2020 visa data is Adjustment of Status. The Report of the Visa Office reports total EB-5 visas issued (Table V) and EB-5 visas issued by consulates (Table VI). The difference shows the number of EB-5 visas issued to applicants using I-485 to adjust status in the U.S.. When consular processing nearly shut down back in March/April 2020 even as USCIS continued to operate, I had hoped that USCIS might pick up some slack, and process more EB-5 I-485 to help prevent loss of visa numbers. Now, looking at the data, I see that USCIS did complete a few more I-485 than usual for Chinese and Indians in 2020, but overall even fewer I-485 visas than in the previous three years.
I doubt that dropping I-485 visa numbers can be attributed to falling demand (Charles Oppenheim mentioned in the November 2020 IIUSA meeting that USCIS had approximately 2,500 I-485 pending for China-born applicants alone.) I am more inclined to blame conservative visa bulletin movement (for low China numbers) and glacial USCIS processing (for low numbers overall). EB-5 visa issuance has generally dipped over the past four years — and that not due to falling demand (backlogs are higher than ever) or reduced visa quotas (the visa limits were actually higher than average since FY2017). COVID-19 gets credit as the major constraint in 2020, but apparently it’s not the only depressing factor. (UPDATE: in today’s “Conversation with Charlie” on the Visa Bulletin, Charles Oppenheim confirmed that indeed, Department of State is not able to move the visa bulletin specifically to maximize adjustment of status during consular closures. Start listening at about minute 32 for discussion of China EB-5 visa movement. The webinar also mentioned that over 9,000 Chinese EB-5 applicants are already “ready to go” at the current final action date, and thus the date is unlikely to move “for the foreseeable future” — at least this fiscal year.)
Note also the multi-year trend in consular processing across all categories.
And now, for my usual table itemizing EB-5 visas issued to countries that received at least 20 visas during the year. But again, I would not make many conclusions from these numbers, which reflect more than anything the accident of which applicants happened to be lucky to get visa interviews in October 2019 to February 2020.
EB-5 Form DataforFY2020 Q4 (July to September 2020)
Form
Received
Approved
Denied
Pending
I-526
53
904
236
15,063
I-829
740
732
62
10,304
I-924
D*
45
45
163
*Redacted in the report, but must be 129 since there were 124 I-924 pending at the end of Q3
The numbers are basically consistent with the previous quarter’s report, and with my expectations. I-526 and I-829 productivity improved again – by a hair. I-526 receipts remained low, as has been the case since the perfect storm of investment amount increase, lengthy wait times, economic upset, and COVID-19. Denial rates were lower than last quarter, though still higher than average. As usual, I’ve assembled charts below that put the numbers in historical context.
Mayorkas Nomination
The best news for future processing productivity and processing times is that Mr. Alejandro Mayorkas may be about to be approved as Secretary of Homeland Security. His nomination was advanced out of committee yesterday. When Mr. Mayorkas was director at USCIS (2009-2013), one of his goals was to build greater expertise, professionalism, and transparency into administration of the EB-5 program, and he pursued that goal with energy. Faced with problems in adjudication from lack of expertise in business and economics, he arranged for the EB-5 team to hire staff at a higher grade who would bring such expertise. Noting need for more coordination with other government agencies, including SEC and FBI for enforcement, he arranged to relocate the entire EB-5 team from California to Washington DC, creating the Investor Program Office. Noting the problem of undefined and untransparent requirements, he pushed publication of the first major EB-5 Policy Memo in 2013. Learning about the issue of inconsistent adjudications, he created a Discretion Review Board. EB-5 stakeholder engagements were quarterly under his watch, and he frequently participated personally to hear about stakeholder concerns. When members of Congress contacted USCIS about constituent problems with adjudication, Mr. Mayorkas paid attention to the inquiries and frequently got personally involved in addressing the inquiries, overruling and chiding adjudicators if necessary. All this wonderful and officious activity earned Mr. Mayorkas a large target on his back, and the Inspector General eventually wrote a report about three of the hundreds of cases in which he interfered – a report that we’ll never hear the end of, and which concluded that he was guilty of creating an appearance of favoritism. (I wrote about this in 2015.) But for those of us who want the EB-5 program to be administered with expertise, professionalism, and transparency, having Mr. Mayorkas at the top at DHS is great news. Just listen to these beautiful words from his nomination hearing on January 19, when he was explaining his approach to leadership at USCIS: “USCIS is an agency that adjudicates cases. That’s what it does. When I had authority and responsibility to fix problems, I fixed problems in the cases the agency handled. It is my job to become involved, to learn the problems that an agency confronts, to become involved in those problems, and to fix them, and that’s what I did.”
Not that Mr. Mayorkas will have much time for EB-5 specifically (indeed, EB-5 administration slipped somewhat back when he moved on from USCIS to become deputy DHS secretary). But at least he should set a positive tone from the top. Those plummeting downward lines that we see in the EB-5 adjudications chart above will eventually trend sharply upward again, I hope. I almost wish that Sarah Kendall were still in charge at IPO, so that in fairness she could have a chance to perform under leadership that instructed her to value efficiency, transparency, and order. I heavily criticized her tenure for decimating productivity at IPO and destroying stakeholder trust, but I believe that she may have been simply and competently pursuing the objectives she was instructed to accomplish.
(As a side note, thank you to everyone who contributed to my Ombudsman survey form! I summarized and submitted your input to IIUSA to bring to the attention of the CIS Ombudsman. I hope that these concerns will make it to an open ear in USCIS leadership.)
The report format is tough to interpret (I previously tried to explain it with pictures here.) In short, the report gives (A) a number of Chinese applicants who have approved I-526 but CANNOT move forward to final action based on the Visa Bulletin. That is not very helpful, because what we really want to know is (B) how many Chinese have approved I-526 plus CAN move forward to final action based on the Visa Bulletin.
I want to know (B), because that is a clue about when the visa bulletin will move again. If (B) is a small number, then the visa bulletin will need to move again soon to allow more people to join the group at the finish line, ready for final action. If (B) is a large number, greater than the number of visas available in the near-term, then final-stage applicants already exceed supply and the visa bulletin will not need to move again for awhile.
It occurred to me that the USCIS report is indirectly helpful, because (in the special case of China in 2020) we can infer (B) from the change over time in (A). Specifically, by the difference in numbers reported in the April 2020 and November 2020 reports.
The number of Chinese applicants who have approved I-526 but CANNOT move forward to final action (A) is increased over time by number of I-526 approvals, and decreased the number who CAN move to final action thanks to visa bulletin movement. The number of Chinese who have approved I-526 plus CAN move forward to final action based on the Visa Bulletin (B) is increased over time by applicants released by the visa bulletin, and decreased over time by applicants receiving visas. However, for China, half of those variables are near zero. There should be few-to-no incoming I-526 approvals since April 2020, because the I-526 visa availability approach that took effect in April 2020 limits adjudication of I-526 without visas available. Thus I think we can discount additions to (A) for China in 2020, and only look at subtractions. The consulate in Guangzhou has issued 0 EB-5 visas since March 2020, so I think we can almost discount subtractions from (B) and mainly look at additions. (The only Chinese visa completions since March 2020 have been from adjustment of status, and that number is low. Chinese apparently received only 489 visas through AOS in FY2020.)
Therefore, I conclude that the difference between the reported numbers of approved I-526 awaiting visa availability in April 2020 and in November 2020 about equals the number of principal applicants who were released to the visa stage by Visa Bulletin movement since April 2020, and still waiting there, with their families, for visas. Referring to the above tables: 23,511-21,253=2,258 approved I-526 (i.e. principal visa applicants). 2,258 principal applicants means about 6,136 total visa applicants. (Considering that for Chinese visas issued in FY2018, principals accounted for 36.8% of total applicants.) So I think we can conclude that there are at least over 6,000 Chinese applicants queued up for final action based on the current Visa Bulletin Final Action Date of August 15, 2015. As of November 2020, Charles Oppenheim was estimating that it might be practically possible to issue about 3,000 visas to China in FY2021. I’m guessing that picture isn’t any better today considering that the consulate in China still has no timeline for resuming EB-5 visa interviews, and USCIS remains slow. If there are already 6,000+ people queued up for only around 3,000 spaces, then that’s already a big crowd at the visa final action stage. The visa bulletin won’t need to move any time soon to increase the size of that crowd. Thus I doubt the Visa Bulletin Chart A date will move for China in FY2021 at all, unless a miracle makes the consulates/USCIS able to work double time and actually issue the over 10,000 visas theoretically available to China this year under the unusually high FY2021 EB-5 visa quota. As I said, though, this is all very complicated. I may well revise or refine this analysis in the future as I receive more information or corrections. And please share your insights!
(Note that I don’t attempt to interpret the Vietnam EB-5 numbers on this report, because there’s no way to guess how the Vietnam number was affected by incoming I-526 approvals vs. exits to the visa final action stage.)
Under the threat of a potential law change that would re-organize the EB-5 visa wait line, people who currently face no visa wait are especially eager to know when they can receive I-526 approval and get visa applications filed. My timing consultation analysis calculates where IPO should be with I-526 processing for given dates on average, considering the composition and movement of the entire queue, official and unofficial guidelines for I-526 processing order, and anecdotal evidence. But a couple other sources also indicate which petitions are getting touched right now: the USCIS Case Processing Times page and the USCIS Check Case Status tool.
The USCIS Case Processing Times Report for Form I-526 currently gives an “estimated time range” starting at 27.5 months for countries with visas available. According to the claimed methodology, that report means that 50% of I-526 decisions in October 2020 were on cases less than 27.5 months old – i.e. filed more recently than June 2018.
The USCIS Case Status Online tool gives more current and specific information. A petitioner can enter his I-526 receipt number on this page to get a current status report for his individual case. Nothing practically prevents the petitioner or his app from also entering groups of receipt numbers, to see what’s happening with other petitions filed at around the same time. I don’t use this method myself but think it’s fair game for investors to do so, and several of my blog readers have shared the results of their investigations. The Case Status check method indicates that a large percentage of I-526 filed up through August 2018 have been assigned for adjudication and already seen action (at least an RFE), and that September 2018 I-526 are now being worked on. For example, see this analysis published by blog commenter Web. And thank you to others who have also shared their work with me.
With this in mind, if you filed I-526 before August 2018 and have heard nothing yet, you might talk to your lawyer about starting to pursue the available inquiry channels to make sure that your I-526 did not fall through the cracks. (The huge deviation in processing times shows that IPO in fact has all kinds of reasons for processing I-526 out of date order, but at least you know that you are out of order and can inquire accordingly.) If you filed I-526 in September 2018 or soon after, then you can look at I-526 filing trends to guess how much longer you may have to wait, considering the most recently reported processing speed (average 300 decisions per month) and that China I-526 from 2018 are not currently being assigned. (If much later, then one also needs to factor in the assumption that processing speed will probably change in the future.) Here’s a clip of data that I’ve collected from a variety of sources on distribution of I-526 receipts in late 2018.
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.
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 3,000 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“
Country
Actual # applicants at NVC
DOS estimated # applicants with petition on file at USCIS
Estimated Total
Estimated years to visa availability for a petition filed “today”
Implied assumption of average visas issued per year
i
ii
A=i+ii
C=A/B
B=A/C, rounded (unrounded, there’s unexplained difference for ROW countries)
Brazil
274
940
1,214
1.8
700
China Mainland
44,803
12,158
56,961
17.2
3300
India
799
4,966
5,765
7.8
700
South Korea
205
2,594
2,799
3.8
700
China Taiwan
148
1,535
1,683
2.4
700
Vietnam
1,662
3,837
5,499
7.9
700
Rest of World
1,172
7,910
9,082
Grand Total
49,063
33,940
83,003
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 recorded 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 recorded at NVC due to delays in getting/submitting documents. 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.
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)
Form
Receipts
Approvals
Denials
Pending
I-526
40
576
346
15,955
I-829
739
725
23
10,332
Notes on the charts:
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.
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.
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.
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.
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.
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.)
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.
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:
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.
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 Updates 