An Open Letter to Kevin Muck at IPO about I-526 data and avoiding EB-5 backlogs


Dear Kevin Muck,

You introduced yourself in the October 2022 EB-5 stakeholder meeting as I-526 Division Chief at IPO, with ten years of experience as an IPO economist preceded by eight years of service at the Bureau of Economic Analysis.

With your background and status, you should be capable and informed about the EB-5 process. But you said something ignorant and dangerous in today’s EB-5 stakeholder engagement.

A question was asked about reporting I-526/I-526E receipt data by TEA category/country, for the purpose of monitoring and avoiding backlogs in the new TEA categories. You responded that stakeholders should consult the Visa Bulletin, and see that the current Visa Bulletin reports TEA categories as “current.”

Think about it, Kevin. Do EB-5 backlogs not exist until they appear at the visa stage/in the visa bulletin? Do you believe that someone filing I-526E today gets visa availability based on the dates in today’s Visa Bulletin?

If you think that, try to look in the face of an Indian who filed I-526 in December 2020, and say “You didn’t need to know about the 2,300+ other Indian I-526 we already had on file at USCIS in December 2020, but didn’t disclose except through FOIA years later.” Try to tell him: “The December 2020 visa bulletin when you filed I-526 said that India EB-5 was current so obviously you were good to go — no backlog for you to worry about when you invested! The visas available to India back when you filed I-526 must still be available to you now, right? Oh… wait… you can’t actually apply for a visa now because India EB-5 now shows as backlogged to mid 2018 in today’s visa bulletin. But how could anyone have guessed? Those visa bulletin dates appear out of nowhere! Surely nothing to do with the number of Indians who filed I-526 in 2018/2019, or our rate of adjudication! Surely IPO was right to ignore Suzanne when she wrote over and over to the IPO Customer Service Mailbox, begging for backlog-relevant I-526 data to enable backlog/wait time prediction! Why would anyone need to ask how many people are entering and lingering in the back of the queue at USCIS, when the Visa Bulletin reports conditions just fine at the terminus of the queue at Department of State?”

Think about it: in a situation where unlimited tickets can be sold for limited seats, why might prospective ticket buyers possibly want to inquire about how many tickets have already been sold?

In a situation where I-526 filing numbers turn into future priority dates for visa issuance, why might anyone possibly want to ask about filing numbers? Do you say — sorry, just wait ’til you all reach the visa application stage and then find out from the visa bulletin?

Kevin Muck, think about today’s prospective investor from China who is considering EB-5 investment with a rural project. With the 20% rural allocation and 7% country cap, that investor can count certainly on competing for one of about 140 visas per year (about 10,000*20%*7%) – anything above that depends on the unknowns of current/future rest-of-world demand and carryover timing. With such limited availability, why might that prospective investor want to know how many Chinese have already filed I-526 for rural projects, whether 80 or 800? Why could that prospect want timely data to show whether/when I-526 volume overall is sufficient to max out the category and activate country caps once the demand reaches the visa stage? Why might she want the receipt data necessary to estimate whether the rural queue already formed at the I-526 stage is of a size to take two years or 10 years to make it past the visa window? And it’s not only investors who want to estimate their investment and immigration horizon at the time of investment — issuers and projects and regional centers require this for their planning as well. And the government also has an interest.

Think about it: what’s the word for soliciting investment with an incentive that might not actually be available? When the U.S. government offers an investor visa incentive, at the same time making it impossible for the investor or issuers to estimate visa availability at the time of investment, I’d call that fraud by the government. It rests on IPO to keep the U.S. government out of such embarrassment by reporting on the I-526 filings that drive EB-5 visa demand and availability.

I have requested this so many times from USCIS, but I know your name and your face now, Kevin Muck, and the size of your salary, and I appeal to you personally. Now that you’ve applied your economist brain to the situation and realize the importance of this data for program integrity, please help make it happen! Here is the report that we need to have USCIS start publishing, at minimum quarterly and at minimum with data no less than three months old. (Even better if we can get monthly reports with data only one month old, but truly anything will be an improvement over current blank silence. USCIS already provides monthly reporting internally to the visa bulletin working group, so adding public reporting should not be a great reach.)

Number of I-526 receipts by country and category for the period ______    
 Rural TEAHigh Unemployment TEAInfrastructure TEAUnreserved
All countries    

*Note: It seems that we need only these countries in the report, since the Federal Register notice RIN 1400–ZA27 clarified that the per-country limit is only triggered when demand exceeds 7% of all FB and EB visas. Which historically means that only China, India, Vietnam, Mexico, Philippines and Dominican Republic are in the country cap danger zone overall, and the last two can safely be disregarded for this report since they’ve never been remotely significant in EB-5.

That’s all for now Kevin. Thank you for putting yourself out to be faced with challenges like these. I depend on you to talk USCIS out of its practice of concealing I-526/I-526E filing information.



(For more background and explanation, see also AIIA’s well-researched article How does the Visa Bulletin Work? And for such EB-5 demand data as I have managed to collect by hook or by crook, see my regularly updated Processing Data page and the Excel file I keep linked to the top of my EB-5 Timing Page.)

FY2022 Annual Report of the Visa Office for EB-5 visas issued by country

The Department of State has finished publishing its Report of the Visa Office 2022. The report covers EB-5 visas issued from October 2021 to September 2022, with breakdown by country of origin, path (consular processing or status adjustment), and category (direct, regional center, TEA, reserved, unreserved). I’ve been waiting anxiously for the report, wondering about visa wastage, Integrity Act implementation, and impacts on the visa backlog and EB-5 visa wait times for China, India, and Vietnam.

This post comments on highlights, followed by data tables summarized from the reports.

FY2022 EB-5 Visa Issuance and Wastage

USCIS actually issued 10,885 of the unusually-high 19,987 EB-5 visas available in 2022.   Of the 9,102 EB-5 visas that didn’t get issued in FY2022, 6,396 couldn’t have been issued because segregated in newly-created set-aside categories. (The unused set-asides should carry over in future years, though the FY23 visa limits report doesn’t show the carryover.) The remaining 2,706 unused EB-5 visas in FY2022 were permanently lost to EB-5. (FY2022 is still much better than FY2021, when EB-5 lost 15,673 total visas, and FY2020, when EB-5 lost 7,498 visas.)

Visa wastage particularly affected countries with mostly regional center applicants using consular processing. For example, South Koreans got 695 EB-5 visas in 2019 (the most recent “normal” year) but only 396  visas in 2022 (86% by consular processing), despite the fact that 909 South Korean EB-5 applicants were ready and registered at the National Visa Center at the start of 2022. Hong Kong likewise suffered, with only 142 EB-5 visas issued in FY2022 despite 866 Hong Kong applicants ready at NVC at the start of the year. Meanwhile Indians, many adjusting status in the U.S., managed to get a record 1,381 visas in 2022 – even more than technically available to them under the year’s unreserved visa limit.

Reasons for FY2022 EB-5 Visa Wastage

EB-5 visa issuance in FY2022 was as low as it was largely due to the unfortunately protracted regional center program expiration, and the policy that prevented visas from being issued to regional center applicants from October 2021 to May 2022. (I wish that policy could be litigated on behalf of the over 18,000 EB-5 visas lost during the expiration.) Monthly visas statistics show that all regional center visas issued in FY2022 were packed into just four months: June to September 2022.  

The government had the entire year to issue direct EB-5 visas, but only issued 621, likely constrained by low demand (i.e. few direct I-526 filed and even fewer making it through I-526 processing to the visa stage). By comparison, 414 direct EB-5 visas were issued in the last normal year of FY2019.

Consular processing numbers were also depressed overall compared with FY2019, reflecting on-going struggles with post-COVID backlogs. For color on why the steps in consular processing remain so slow and problematic, see questions and answers in the Department of State/AILA Liaison Committee Meeting February 9, 2023, the NVC Immigrant Visa Backlog report (look at trends in the number of interview appointments, and compare appointment volume with backlog size), and the October 2022 Update on Worldwide Visa Operations. Those in or approaching consular processing should be aware of the NVC Timeframes page, with information on process status and times. The bright side is that consular problems affect not only EB-5 but also family-based visa issuance, and EB-5 benefits in 2023 from a share in FB visas that went un-issued in 2022 (as reflected in 2023’s unusually high EB visa limit).

High Volume of EB-5 Status Adjustments in FY2022

EB-5 visa issuance in FY2022 was as high as it was thanks to an unprecedented high number of status adjustments (37% of the total, as compared with 17% in 2019). For example comparing 2022 with 2019 visa issuance, China got fewer visas last year through consular processing but five times as many visas through status adjustment. 

The unusually high AOS numbers reflect the fact that USCIS got political pressure and made herculean efforts at the end of FY2022 to step up work on employment-based status adjustments, even as consular processing continued to struggle post-COVID.  

Direct EB-5 (and the visa bulletin even briefly becoming Current for China direct EB-5) did not contribute much boost. China ended the year with only 199 direct EB-5 visas issued – not much higher than usual, and not explaining the unexpected thousands of Chinese who adjusted status in 2022.

RIA Implementation, Reserved Visas, and Country Caps

Report of the Visa Office 2022 does segregate EB-5 visas into “5th Unreserved” and “5th Set-Aside” categories, reflecting changes to visa availability made by the EB-5 Reform and Integrity Act enacted March 15, 2022. Of course, no visas were issued in 2022 in the “5th Set-Aside” categories, since no applicants who filed I-526 after March 15, 2022 could have reached the visa stage in time. And according to Department of State interpretation, all EB-5 applicants with pre-March 2022 priority dates can only now qualify for a visa in the new 68% unreserved category, regardless of whether they invested in a TEA that matches new definitions. (I think this interpretation can and ought to be challenged, at at least one lawsuit by DRVC is challenging it, but it’s the fact for now.)

In theory, country caps further restrict availability within each category. Thus pending applicants from any one country can only expect up to 7% of the 68% unreserved EB-5 visas (with “otherwise unused” unreserved numbers going to the oldest priority dates i.e. Chinese).

In 2022, this theory held true for Vietnam but not for India. While both countries have excess demand for unreserved visas, and large NVC backlogs, the government in fact issued 815 EB-5 visas to Vietnam (about 7% of unreserved EB-5 visas) and 1,381 EB-5 visas to India (about 7% of total EB-5 visas). Hmmm…

Was this different treatment of Indians and Vietnamese an oversight, with the government remembering the unreserved limit in the new law for Vietnam while forgetting it for India? 2022 was naturally confusing for the Visa Office, which had to deal with a mid-year law change and leadership change. Or did many Indians get lucky just because they happened to be in the US, unlike most Chinese and Vietnamese EB-5 applicants with earlier priority dates? I wonder if maybe Indians got assigned “otherwise unused” numbers at the end of the year that should’ve gone by right to earlier Chinese priority dates, but practically couldn’t because the consulate in China lacked capacity to hold more interviews in time while the California Service Center had capacity to complete more I-485 and help avoid wastage. (I also wonder if a difference between consular and USCIS capacity to issue visas at the end of the year could explain the unusually high number of Chinese regional center applicants who were able to adjust status in FY2022 — more applicants than one would expect from priority date order.)

Country Diversity

FY2022 was similar to previous years in terms of countries claiming the most EB-5 visas. As in 2019, the top users in 2022 were (in descending order): China, India, Vietnam, South Korea, Brazil, and Taiwan. Meanwhile, Mexico, Canada, Russia, and Iran moved a few notches up the list in 2022, while Venezuela, South Africa, Great Britain, and Japan moved a few notches down. I was surprised mainly by the number of Canadians on this year’s list (why, Canada?) and Iranians (considering the often arduous source of funds path).

Visa Demand Context

For a reminder of the size of the visa queue before FY2022 visa issuance,  see the presentation by Charles Oppenheim for IIUSA in November 2021. At that time, Oppenheim estimated the EB-5 backlog (including applicants already registered at NVC and potential future applicants associated with I-526 pending at USCIS) at 57,253 visa applicants for China, 7,418 for India, 3,954 for Vietnam, and 18,054 for other countries  (see Slide 10).

Visas issued in 2022 reduced those queues by 6,125 visas to China, 1,381 visas to India, and 815 visas to Vietnam. (I assume that I-526 filings in 2022 didn’t grow the queues very much, unless it turns out that most of the 829 receipts last year came from Indians).  

The future wait times associated with that scary queue depend on (1) how many petitioners/applicants in the queue will ultimately give up/lose eligibility before they can clam a visa (likely a large number given the untenable wait times looming for Chinese and Indians near the end of the queue), and (2) how many EB-5 visas will be issued per year from now on, with the base case being 9,940 EB-5 visas * 68% unreserved * 7% country cap = up to 473 to applicants of each country. The actual number of visas available per-country in a given year can be significantly higher than the 473 base case based on carryover of family-based visas (as happened in FY2022 and happening again in FY2023 due to COVID-19), carryover of reserved visas (as should happen in 2024 and 2025 assuming law compliance and continued slow I-526 processing), and unreserved visas leftover after country caps (which should increasingly benefit China in coming years).  But even with the most optimistic assumptions on future visa availability, Chinese who filed I-526 from October 2016-March 2022 and Indians who filed I-526 from November 2019-March 2022 could face five or more years of waiting just for conditional permanent residence. Or would face that wait, except that it exceeds what many applicants (not to mention their RCs, projects, and investments) can practically bear, predictably leading to many queue-shortening drop-outs/failures. Meanwhile, new investors in reserved categories have to sweat over limited availability (with just 20%, 10% or 2% of visas available in each new lane, further restricted under the 7% country cap) and guessing the time for I-526 filings to invisibly build and max out that limited availability. I’ll write more about unreserved and reserved visa availability and wait time issues in separate articles.

The bottom line is that EB-5 suffers from a supply problem. EB-5 needs more visa numbers in order to accomplish what regional centers, investors, and public policy all require: a stable and predictable immigration opportunity that can accommodate new investors plus prevent a despairing rush for the exits for past investors/investment.

Tables based on the Annual Report of the Visa Office

December/January Updates (Regional Center status, visa availability, I-526 and I-829 Processing in Q4, Fee Rule, Form I-526 and I-956 revisions and comments)

A quick roundup of significant EB-5 developments since last report – rather delayed, while I held out for good news. I did not expect to start my 14th year in EB-5 grappling with basic questions like “How and why do regional centers exist?” and “Is EB-5 an immigration opportunity?” I hope that 2023 will bring policy clarifications and processing improvements to help resolve such questions, which should not be open.

Regional Center Status

On December 23, USCIS slipped a new sentence onto the USCIS website: “Dec. 29, 2022, is no longer the deadline to file Form I-956, Application for Regional Center Designation, amendments, as required by the Behring Settlement, and Form I-956G, Regional Center Annual Statement. USCIS is extending this deadline until we publish guidance that clarifies the requirements of these forms.”

I saw this update on Christmas Eve and thought about leaving the nieces and nephews to report on it, but why? EB-5 stakeholders needed this notice months ago. By three business days before the deadline, everyone had already had to make their guesses and gambles and done what they were going to do with I-956 and I-956G (if they even realized that a December 29 deadline existed, since USCIS did not offer I-956 guidance to the general public, but only in litigation settlement and a private meeting with a few litigation plaintiffs). USCIS and industry are not sure how to handle the regional center application, amendment, and reporting forms because we lack clarity or agreement on basic questions about regional center identity and responsibilities. The effect of the Integrity Act on previously-approved regional centers and their investors remains unclear. Nine months after the Integrity Act passed, the USCIS Policy Manual section on regional center designation and termination remains vacant.  Meanwhile, billions of dollars are flowing in real time under sponsorship of entities and from investors who aren’t sure what eligibility requirements do or will apply to them. On the bright side, I’m glad that USCIS acknowledged a need to “clarify the requirements,” and did not stick to an unreasonable deadline. And stakeholders now have more time to provide input.

Form I-956, I-956F, I-956G, and I-956K

The Federal Register has re-opened opportunity to comment on the new regional center forms I-956, I-956F, I-956G, and I-956K. Feedback will be accepted until January 26, 2023. (Click on the “View More Documents” button to see what you’re commenting on.) This is a great chance to submit your view on the application/implementation of regional center requirements, because a responsible person at DHS is compelled to actually read and respond to each comment made through the regulatory process. It’s not like stakeholder meeting comments, which can disappear into the void. I was interested to read USCIS’s digest and responses to the previous round of comments. Many stakeholder questions about ambiguities were met with the response “USCIS may consider rulemaking to address these issues.”

I-526 and I-829 Receipt and Processing Data

USCIS published form receipt and processing data for FY2022 Q4 (July to September 2022), and I also received data unofficially for EB-5 adjudications in October to December 2022. See my Processing Data page with updated charts and detail for I-526, I-829, and I-485 processing through the end of the year.

Short report: fantastic performance for I-485 at the California Service Center in Q4 (thanks to USCIS leadership for prioritizing EB visa issuance and to Congress for applying political pressure that proved effective!), and on-going terrible performance by the Investor Program Office. IPO is still on track to deliver over-six-year processing times for I-526 and I-829, still chaotic in the date range of petitions being processed, and still denying a large percentage of I-526. In July to September 2022, over half of I-526 adjudications were denials. Fiscal Year 2022 ended with a total of 590 I-526 approvals and 825 denials/withdrawals; in other words, $295+ million in EB-5 investment yielded a chance to pursue a visa while $423.5+ million was invested without resulting in any chance to immigrate. These dreadful numbers can trace back to factors including economic pressures on EB-5 projects, heightened risk from long processing delays, the legacy of “extreme vetting” philosophy, and rogue IPO staff alone in their home offices and apparently free to make up and apply idiosyncratic standards of proof for source of funds. I expect the I-526 success rate to improve if and when IPO standardizes and publicly articulates its policy and adjudication guidelines, shortens processing times, and increases staff supervision and quality control.

I-956 and I-956F filings commenced in Q4, but the USCIS data report for Q4 does not report them. The USCIS Office of Performance and Quality may not even realize that the I-956 forms exist, and still has line items for I-924. OPQ did add I-526E to its Q4 data reporting, lumped in one line item together with I-526. Just 188 I-526/I-526E were filed in July to September 2022.

USCIS Fee Rule

The Federal Register has published a Notice of Proposed Rulemaking for the future USCIS fee schedule, with a public comment period open until March 6, 2023. USCIS invites the public to a listening session for the Proposed Rule on January 11 at 2 pm ET.

The fee rule process is critical, because it determines over 90 percent of USCIS funding and whether or not USCIS has “the resources it needs to provide adequate service.” The fee rule process is a major reason why USCIS never has ended up with needed resources or adequate service. If you want a good cry and to lose some hair, read the 132,341 words that explain the budgeting methodology and assumptions. I am working on an in-depth article discussing the rule’s EB-5-related content. The obvious headline is the huge proposed increase to EB-5 form filing fees. But I’m more concerned by the assumptions and plans disclosed in discussion of how USCIS arrived at the proposed fees, and the question of how to respond strategically so that the Investor Program Office ends up with resources.

UPDATE: The IIUSA blog has published my detailed analysis of the formula and inputs behind the fee rule, with thoughts on how to respond.

Visa Availability

Congress did not, after all, pass the EAGLE Act or repeal country caps as part of FY2023 appropriations, which means that (for now) EB-5 visa availability remains constrained/protected by caps that limit any one country to 7% of visas in oversubscribed categories. In the near term, that on-going status quo is good news for anyone in EB-5 who isn’t an in-process EB-5 applicant born in China, India, or Vietnam.

The new EB-5 set-aside categories remain enticingly “Current” in the Visa Bulletin, which means nothing for planning because the Visa Bulletin cannot see and does not flag crowds, if any, when they start at the I-526 stage. The Visa Bulletin only monitors and controls the later visa stage, not the queue on its way to the visa stage. USCIS knows how many people are getting in line by filing I-526/I-526E, but USCIS has persistently refused to publicly report on I-526 filings/inventory by category or country. This leaves stakeholders blind to visa backlogs until the backlogs have already built up and too late to avoid.

If only USCIS would report timely and category/country-specific I-526 filing data, then we could project and compare in-process visa demand with available visa supply to calculate availability/timing for each EB-5 category.  USCIS should want to empower prospective EB-5 users to judge upfront whether and when EB-5 could offer an opportunity to immigrate. The U.S. government engages in fraud when offers an investor visa incentive while making it impossible to assess, at the time of investment, the availability of that incentive. (So far, I’ve only succeeded in getting USCIS to answer in November 2022 a Freedom of Information Act request that I submitted in February 2020 for I-526 inventory by country, having previously fruitlessly tried to get country-specific I-526 data via IPO customer service requests. The two-year-old data was useless by the time it was finally delivered to me. Others have encountered similar delays and obstruction from USCIS. As of today, the best I-526 data we have is mostly thanks to IIUSA communicating with the now-retired Charles Oppenheim at Department of State, and goes through 2021. I hope for more transparency from USCIS in 2023!)

Form I-526 and I-526E

We get another chance to provide feedback to USCIS on the revised Form I-526 and I-526E, with comments due by January 23, 2023. The last round of comments successfully convinced USCIS that it’s unreasonable to demand that petitioners detail 40 years of employment history (the current proposed version asks for 20 years of employment history). Perhaps this time we can get through to USCIS what “substantive authority” means, such that USCIS doesn’t misidentify “persons involved.” Also, let’s all remind USCIS that the public list of questions and required evidence on the Form I-526 should match the private list of questions and required evidence given to USCIS adjudicators. (For example, if USCIS truly holds the untenable standard that that each investor’s eligibility is contingent on the lawful source of funds for each other investor in the NCE, then the Form I-526 should reflect that standard, and request lawful source of funds documentation for NCE investors other than the petitioner. Currently, the Form I-526 does not request any non-petitioner source of funds evidence. But USCIS has directed adjudicators to request it at the RFE stage, and to deny direct I-526 for lack of source-of-funds documentation for non-EB-5 investors.)

Form I-956K Promoter Registration

USCIS has published Form I-956K, Registration for Direct and Third-Party Promoters. The purpose of the form is “to register with USCIS as a direct or third-party promoter” and to “allow DHS to perform standard background checks with law enforcement agencies.” The form is exciting due to its ambiguities (with vague terms pointed out in the draft I-956K still undefined), and the dramatic consequences of getting it wrong. The I-956K instructions warn that if USCIS finds problems with I-956K, penalties can include criminal prosecution for the aspiring promoter plus denial of applications and petitions associated with the regional center, NCE, or JCE associated with that promoter. The I-956K instructions request that “a promoter should submit Form I-956K before operating on behalf of any of the specified entities or promoting any offering under the EB-5 Regional Center Program.” (See also the article “Who are ‘Promoters’ and What Requirements Apply to Them Under the EB-5 Reform and Integrity Act?” in the October 2022 Regional Center Business Journal, and the above-linked Federal Register invitation to submit I-956 comments to USCIS.)

EB-5 roller coaster continues (RC status after December 29, processing, FY2023 visas, EAGLE Act and country caps)

While my plate is full of everyday work plus hard articles that could be written, I’d like to briefly flag a few matters of critical importance for the EB-5 community. There are questions about the status of previously-approved regional centers and their investors, ongoing processing issues, and the prospect of new legislation to change everyone’s visa wait times. Before launching into details, a reminder that industry associations like IIUSA (for regional centers) and AIIA (for investors) are working on these issues, and you can join an association to help magnify your voice and interests in these volatile times.

Regional Center Status after December 29

USCIS finally published minutes from the October 14, 2022 meeting between USCIS and the plaintiffs in the Behring litigation. These minutes reveal that at least as of October, USCIS had yet to make up its mind about a few very consequential questions, and invited stakeholder feedback.

  • USCIS has not yet decided whether it will take the position that RIA requirements, such as fund administrators and audits, apply to pre-RIA projects. USCIS will consider stakeholders’ written position paper on this issue in accordance with existing channels of communication and in compliance with Section 107 of the RIA.
  • USCIS will accept input on the issue of whether the I-956G filing requirement should be deferred to December 2023 based on input from Stakeholders that much of the information is duplicative with the I-956 being filed in December 2022. Input will be provided in accordance with existing channels of communication and in compliance with Section 107 of the RIA.
  • USCIS has not determined what will happen to regional centers that choose not to file Form I-956. Specifically, it has not decided whether such regional centers will be terminated, whether they will have to file I-956H, whether they will have to file annual statements, or whether any of the RIA requirements apply to them. They will accept our written position paper on these issues in accordance with existing channels of communication and in compliance with Section 107 of the RIA.

That last bullet point is especially urgent and significant. The Form I-956 content is focused on compliance for capital raising activities, and as such not technically relevant for previously-approved regional centers that do not plan to raise new EB-5 capital going forward. But what if USCIS decides to terminate all regional centers who do not choose to raise new EB-5 funds? If USCIS starts terminating regional centers for not filing I-956 by December 29, 2022, instead of offering another status for RCs still responsibly shepherding previous EB-5 investment, then past investors in those RCs will find their immigration status in jeopardy. Under the new law, regional center termination means that good faith investors in the terminated regional center lose eligibility in 180 days unless (1) the investor’s NCE manages to switch sponsors and secure affiliation from a different still-authorized regional center (practically a fraught and expensive undertaking) or (2) the investor makes a new investment (yikes). Under the new law, regional center termination has consequences for investors at all stages in the process, including during conditional permanent residence.  The grandfathering language in the new law protects past applicants from denials based on the expiration of regional center program authorization, but not explicitly from denials based on changes resulting from new legislation. So USCIS faces judgement calls when it comes to how to treat previously-approved regional centers and their investors, and should hear our input for those judgement calls. (To review the new law provisions, see INA 203(b)(5) sections (M) and (S). And here’s the Settlement Agreement.)

The plaintiffs in the Behring litigation are coordinating response to USCIS. Their feedback will naturally reflect their interests and perspective as regional centers who do choose to file I-956 to raise new capital going forward. If you’re with an RC that does not plan to raise new capital after RIA, and concerned about protecting past investors, you should also let USCIS hear your voice and reasoning, as soon as possible. The stakes are very high. See the base of this page for links to accepted channels of communication for submitting feedback. (UPDATE: Klasko Law, counsel for several of the Behring litigation plaintiffs, has just published a detailed article on this topic.)

RIA Compliance Resources

Note that the October 2022 Regional Center Business Journal is packed with substantive and helpful articles for regional centers working with compliance under the new law, including:

  • “Checklist of Contents for Regional Center Compliance Policies and Procedures Manual Under the EB-5 Reform & Integrity Act” by the EB-5 Securities Roundtable
  • “New Job Creation and TEA Rules in the EB-5 Reform and Integrity Act of 2022 Revised and Explained” by Scott Barnhart and Adam Greene
  • “Understanding Audits & Fund Administration Under the Reform & Integrity Act” by Coleen Danaher, Bidhya Dhungel, and Mike Xenick (also a blog post)
  • “Regional Center Transactions Post-RIA: Considerations for Purchase, Sale, and/or Rentals” by Rohit Kapuria and Ronald Fieldstone
  • “EB-5 Concurrent Filing” by Simone Williams and Charles Kaufman
  • ”Who are ‘Promoters’ and What Requirements Apply to Them Under the EB-5 Reform and Integrity Act” by Catherine DeBono Holmes (also a blog post)
  • “Reserved Visa Rules, Possible Future Visa Allocation, and Recommendations” by Barnett, Oppenheim, and Lee (also a blog post)

I’m thankful for the hard work by industry. I’ve noted no significant new content on the USCIS website EB-5 pages. The EB-5 Policy Manual EB-5 Chapters 3, 4, 5, and 6 have not been updated yet based on the new law.

Processing and Timing Questions

I continue to update my Processing Data page with intel as I receive it on I-526 and I-829 processing. Pay attention to volume trends, and to the distribution of filing dates being adjudicated.  Since May 2022, the Investor Program Office has stabilized into a new stride of 100-140 decisions per month each for I-526 and I-829, with decisions spanning a wide range of filing dates. At that volume, it will take IPO about eight years to process the already-pending inventory of over 12,000 I-526 and over 11,000 I-829. My best guess for your personal adjudication wait is “probably less than eight additional years,” with the “how much less” depending on your filing date, whether you happen to benefit or suffer from USCIS’s major deviations from FIFO processing, how soon the new adjudicators hired this year/next year can get up to speed, and whether/when IPO gets approval to significantly increase its authorized staffing level.  No one thinks that eight years is an acceptable processing target. But regardless of goals, actual performance is constrained by staffing (which doesn’t change quickly) and by decisions about processing order (which can only improve appearances by manipulating the median, and provide faster times for some at the cost of slower times for others). IPO’s demonstrated incapacity to handle the EB-5 inventory is my top EB-5 concern.

The process for I-526 approvals getting transferred to NVC continues to be problematic. See question 16 (p. 7) of this June 2022 AILA/DOS Q&A for a process to follow if NVC has not received your approval notice and sent you a welcome letter after 60 days.

Visa operations generally are improving, though not back to normal. See the DOS October 21 Update on Worldwide Visa Operations.

FY2023 Visa Availability

Department of State has published Annual Numerical Limits for Fiscal Year 2023. Despite what the EB-5 Reform and Integrity Act said, the published FY2023 annual limit for EB-5 visas is exactly and only 7.1% of the EB limit. The report mentions no carryover of the 6,396 reserve EB-5 visas that went unused in FY2022.  I had wondered what DOS would do with a new EB-5 carryover law that contradicted another part of the INA. It appears that the conflict has not been resolved in EB-5’s favor. It’s a pity, because EB-5 will lose over 10,000 visas by FY2024 if the newly-reserved EB-5 visas both can’t be issued (because strictly restricted to post-RIA applicants who can’t reach the visa stage yet) and also can’t be carried over to the next year (as RIA had contemplated). I’ve encouraged advocates to look into this.

EAGLE Act and Country Caps

Under current law, there’s a country cap of 7% applied to each category of Employment-Based visas. The cap limits any one country to 7% of visas within that category until other countries’ demand under the 7% limit has been satisfied. (I used to assume that the 7% applied to categories as a whole, not subcategories, but Charles Oppenheim recently set me straight. In EB-5, the 7% cap applies independently within each reserve and unreserve visa class, not just to the EB-5 limit as a whole.)

Without country caps, visas within each EB category would simply get issued by priority date, oldest to youngest.

Who benefits from the country cap law, and who would benefit from changing the law to eliminate country caps and let EB visa applicants flow in FIFO order? Country caps protect visa availability for applicants from low-demand countries, while constraining applicants from high-demand countries into enormous backlogs. Big tech companies reliant on EB-2 and EB-3 don’t like country caps, which is why legislation to eliminate country caps has been proposed in Congress continuously since at least 2011. In EB-5, Chinese investors who filed I-526 before 2018 and Indian investors who filed I-526 in 2019-2021 suffer from country caps, while others largely benefit. I’ve written about country cap bills several times over the years and they never passed, but the current version (the EAGLE Act H.R.3648/S.4567) is reportedly actively in play, with a chance to get attached to FY2023 appropriations. And so I’m back with a few comments on the EB-5 effects, in case the legislation does pass.

To understand what a merely-FIFO queue for EB-5 visas would look like, it’s necessary to think about the distribution of the 80,000+ people currently queued up for an EB-5 visa (either already at the visa stage, or on the way at USCIS). The government doesn’t report this valuable intel directly, but I can guess by looking at data for I-526 filings by country and by year, and thinking about where those petitioners must be today based on what I know about petition processing, visa issuance, and the visa bulletin to date. Having estimated the distribution of applicants in today’s queue, I can further project the FY2025 distribution based on what I expect of I-526 processing and visa issuance in 2023 and 2024. I don’t have time to spell out all my thinking on this, but here’s my Excel file of data and calculations.  You’re welcome to download and play with this and apply your own assumptions. (One significant variable is attrition from denials/withdrawals/age-outs, which could reasonably turn out much higher than the value entered in my model.) My best guess is that if Congress acts soon to eliminate country caps, and if the country cap elimination takes effect in FY2025 as proposed, then it will have the following EB-5 effects.

  1. Without country caps, the wait times for China-born EB-5 applicants with pre-2022 priority dates will at least have a predictable ceiling, instead of being potentially nearly infinite as is the sad case under country caps plus reserve visas. I estimate that a majority of the Chinese backlog (at least 2016/2017 priority dates) would get visas at least by 2032.
  2. Without country caps, applicants from all countries except China with pre-2022 priority dates who don’t already have a visa by FY2025 could wait until 2032 before they can start getting visas. That estimate considers the number of Chinese applicants with pre-2018 priority dates whom I calculate will still be pre-green-card by 2025 (further considering newly-restricted unreserved visa availability and pending rest-of-world demand).  Based on processing trends and factors observable so far, I expect that a significant number of non-Chinese who filed I-526 in 2019-2022 will not have received a visa yet by October 2024 due to slow processing, and thus impacted by country cap removal.
  3. Without country cap limits/projections, people filing I-526 or I-526E after 2022 would be advised to invest exclusively in one of the new reserve visa categories (since the unreserved category will be entirely absorbed by the oldest Chinese applicants if unconstrained by country caps). With country caps, on the other hand, new petitioners from some countries other than China and India might be advised to invest outside a TEA to qualify for an unreserved visa, since 7% of 68% is a lot more visas available than 7% of 20%, 7% of 10%, or 7% of 2%.
  4. Without country caps to hold back and distribute demand, EB-5 categories will quickly become not-current across the board in the visa bulletin.

People are often surprised that applicants who started the EB-5 process years ago remain vulnerable to changing rules and conditions for visa availability. This is true because of when visas get allocated. Filing I-526 does not lock in access to a visa. Petition approval does not lock in access to a visa. The law and conditions that determine the EB-5 visa allocated are those that pertain at the time the visa is allocated — a time years after investment under current processing conditions. For EB-5 to become a stable program, that needs to change. We need more predictability at the time of investment/I-526 filing about the availability and even existence of the visa that incentivized the investment. The U.S. government should want to avoid bait-and-switch.

Country cap removal keeps being pushed in Congress because Employment-Based visas have a live issue — painful backlogs. So long as country cap victims are suffering in decade and multi-decade long queues, country cap beneficiaries cannot expect to rest easy in an unchallenged status quo. Until backlog problems resolve, we can expect to see civil wars over the insufficient few visas available. I would love to see the U.S. government supply EB-5 visa numbers sufficient to reward the investment-fueled U.S. job creation that already occurred based on the promise of such visas. That would be only fair. As things stand, the United States has raised and benefited from about 15 billion dollars in EB-5 investment over and above what it can justify based on current EB-5 visa number limits.

I-526, I-829, and I-485 Processing (FY2022 Q3 report and leaked data)

Last week, USCIS updated the Immigration and Citizenship Data page with reports for FY2022 Q3 (April to June 2022). I collected EB-5-specific data from the All Forms and I-485 reports, summarized below, and created charts to place the reports in context.

FY2022 Q3 Performance Data Report Excerpt

FormDescriptionReceivedApprovedDeniedTotal CompletedPending at period endProcessing Time (months)
I-526Immigrant Petition by Alien Investor3226419145512,98843.8
I-829Petition by Investor to Remove Conditions2003404938911,52348.1
I-485I-485 at the California Service Center (WSC)1,396372544265,323

Points I notice in the Q3 data report:

  • USCIS has not yet started reporting data for the new EB-5 forms (the I-956s or I-526E). The report does include the pending I-924 (139) and I-924A (1,813) that may not ever be adjudicated.
  • Q3 saw over a thousand I-485 receipts at California Service Center, but only a few dozen I-526 receipts. I’m not surprised, considering that Q3 was the first quarter under the EB-5 Reform and Integrity Act.
  • Q3 completion rates for I-526, I-829, and I-485 were all much higher than the previous quarter (an encouraging trend), and still very low in context of historical performance and the backlog (a notable fact). Significant room for improvement remains, as illustrated in the long-term trend charts provided below.
  • Dividing “Pending at period end” by “Total completed” for each form, we can derive a processing time estimate that will apply to a petition at the end of each queue if USCIS continues the same productivity it achieved in Q3. Result: 7.1 years for I-526, 3.1 years for I-485, and 7.4 years for I-829. We need to keep pressing USCIS to increase processing volume going forward, to avoid that unacceptable result. (When I redo the calculation using trailing 12-month completions in the denominator rather than just Q3 completions, then the result stays at 7 years for I-829 but increases to 13 years for I-526 and 6 years for I-485. Yikes! We now know that in 2021/2022, the Investor Program Office lost a large number of its productive staff and kept less productive staff. That’s a problem that that doesn’t solve quickly. I was encouraged to see a few more IPO job announcements this month, and look forward to seeing some results from their work in 2023/24 once they’re hired and trained.)
  • The Processing Time column in the USCIS report indicates the median processing time of cases decided in the reported quarter.  I tend to disregard this number because it’s (1) not predictive (simply reflects one point of past performance) and (2) not generally applicable even to past performance (the processing time range behind this median is extremely wide, as further discussed below).
  • The I-526 denial rate remains alarming: 42% of I-526 decisions in April to June 2022 were denials. The large number of denials reflects attitudes at the Investor Program Office, particularly toward direct EB-5 cases, and particularly since the EB-5 Reform and Integrity Act protected USCIS from judicial review of unjust EB-5 decisions. (During the RC program lapse, a majority of the reported “denied” I-526 were actually just withdrawn I-526, but the Q3 denials are largely denials.) Litigators, is there anything we can do about systemic adjudication problems behind mass denials, or do petitioners really just have to fight battles individually in the sluggish AAO process?

As an aside, note that USCIS is making what might be a good faith effort to improve case processing reporting, and solicits public input. Here is a copy of an email I received yesterday from USCIS, inviting people who have filed a form with USCIS in the past 12 months (or their advocates) to apply for participation in a focus group. This group will help USCIS “understand if the information provided on the Check Case Processing Times webpage is useful.” Consider applying to participate! It’s always possible that the current Check Case Processing Times page isn’t the way it is out of malice. Maybe USCIS would truly like to design a page that’s useful to applicants wanting to understand processing times, not only useful to USCIS for the purposes of obscuring processing trends and blocking case inquiries.  

USCIS data reports show the total size of the EB-5 form workload, and the rate at which USCIS is working on it. USCIS does not officially give visibility into which dates they are actively processing, and which they are leaving behind. For that, we have to consult anecdotal evidence and leaks. I’m not saying where I got the detail reported in the following charts, but I judge that the detail is accurate and close to complete. As illustrated in the charts, the Investor Program Office is far from implementing a first-come-first-served process. This complicates time estimates for individual cases.

Points I note from the unofficial data.

  • Over the past year, I-829 processing has generally clustered around petitions filed in 2019, but also included many I-829 filed in 2017 and 2018, and a few filed as early as 2015 and as late as 2021. I do not know the reasons for departing from FIFO discipline in I-829 adjudications. Is there an element of randomness in case assignment resulting from paper files and lax management? Is USCIS trying to group I-829 from different filing dates by project, to process the project all at once? Are expedite approvals and mandamus actions having a significant impact? Are certain groups of I-829 intentionally left untouched or taking years of touch time for reasons related to policy or litigation? If anyone would like to leak reasons to me, please reach out on email, phone, or Telegram.
  • I-526 processing has ranged broadly over the past year. Recent I-526 approvals have settled into a sort of cluster on I-526 filed in December 2018, but also covered many cases from the end of 2019 (probably mostly direct investor petitions assigned during the RC program shutdown), I-526 filed in 2021/22 (probably mostly I-526 with expedites granted – or possibly cherry-picked to make the median processing time report look better) and a wide range of I-526 filed before 2018 (selected out of the unadjudicated backlog for unknown reasons, and incidentally convenient for making the 80th percentile case inquiry cut-off more restrictive). My charts highlight timing for I-526 approvals and RFEs. The denial picture is more murky, since USCIS mixes denials and withdrawals, but I note generally that denied petitions tend to be older than approved petitions. The data supports a reasonable hypothesis: that the longer an I-526 stays unadjudicated, the more likely it is to end in denial or withdrawal.
  • USCIS has cleared close to 100% of I-526 filed up through September 2015 (the end of the last long-term RC program authorization), but still has a significant pending inventory of untouched I-526 from every quarter since then. The visa availability approach can explain about half of these left-behind I-526. As a reminder, you can find the most recent breakdown of total pending I-526 by country of petitioner origin in the March 2022 Oppenheim presentation for IIUSA (slide 8). This PDF from October 2018 was the last detailed per-country inventory breakdown published by USCIS. My information for I-829 is less complete, so I did not attempt a detailed I-829 inventory breakdown.

Facing FY2023, Suggested Articles, October 2022 Visa Bulletin

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

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

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

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

Reading list:

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

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

Factors and Trends Underlying I-526 Processing Times

While everyone buzzes about when I-526E can be filed with USCIS (a key point in the proposed Settlement Agreement for the Behring litigation), I consider another critical issue: when I-526/I-526E can be reviewed and approved by USCIS. The processing time topic should concern everyone who wants immigrant investment to possibly result in immigration.

I’ve noted that “about two years” has long been a favorite guess to answer the question “How long does I-526 take?” Actual estimates are tough, and the two-year guess looks relatively tolerable (still longer than I-526 should take, but about the outside limit of how long most EB-5 project developers and investors can imagine waiting in limbo). The guess was also justifiable as an estimate through about 2018, but now quite unmoored from observable processing factors.

Processing times naturally result from the size of the I-526 inventory, the quantity and productivity of resources assigned to I-526 adjudication, and the order of I-526 adjudication. I’ve carefully assembled below a table highlighting data to help ground thinking about these factors.

Consider: back in 2018, the median age of completed I-526 was 18 months. From 2018 to Summer 2022, the number of adjudicators assigned to I-526 fell by 61%. In the most recent officially-reported quarter (January to March 2022), IPO completed 24x fewer I-526 than in the same period in 2018. IPO has over 13,000 I-526 pending today, and has not processed more than 400 I-526 a month since 2018, and not more than 200 I-526 per month since July 2021. How far does that put us from expecting two-year I-526 processing times?

When one collects fees for a service, spends the fees, and then does not deliver the service or even allocate resources to provide the service, that’s generally called fraud. Today, $49 million of spilt I-526 filing fees call from the ground, asking why the United States government has assigned only 26 I-526 adjudicators to handle an inventory of over 13,000 pending investor petitions, offers excuses rather than improvement plans for falling IPO adjudicator productivity, and manages I-526 inventory by defining a large percentage of the inventory as ineligible for processing (via the “visa availability approach”).

People in government and industry who want to pave the way for future EB-5 investment and more I-526 (I-526E) filings must look at processing factors as of today. Witness how conditions have deteriorated since 2018, back when we thought two-year I-526 processing times were long. Consider how much needs to change going forward to allow for the “timely processing” of under a year that Congress wants to see for EB-5 forms according to the EB-5 Reform and Integrity Act of 2022. (Tables can look boring, but persevere. This table highlights significant detail worth thinking about. I have also created a new Processing Data page to house trend charts.)

Number of I-526 pending as of March 3120,45516,63313,385A. USCIS Immigration & Citizenship Data page reports
Number of I-526 completed in the quarter ended March 313,615904152B. USCIS Immigration & Citizenship Data page reports
Average I-526 completions per working day in the quarter ended March 3159152C=B/61
Approximate number of IPO employees as of March200245177D. USCIS reports in stakeholder meeting notes, Congressional testimony, and/or litigation declarations
Number of employees gained or lost by IPO during the previous 2-year period45(68)E is calculated from D
Number of IPO employees assigned to I-526675626F. USCIS reports in stakeholder meeting notes, Congressional testimony, and/or litigation declarations
Percent of IPO employees assigned to I-526 adjudication34%23%15%G=D/F
Percent change to IPO’s number of adjudicators assigned to I-526 2018-2022-61%H is calculated from F
Average I-526 completions per I-526 adjudicator in the quarter ended March 31546I=B/F
Percent change to IPO’s productivity per I-526 adjudicator 2018-2022-89%J is calculated from I
Estimated time (months) to process all I-526 pending as of March 31, assuming that the rate of completion from the most recent quarter continues going forward1755264K=A/B*3
Median processing time (months) of I-526 completions in this fiscal year183144L. USCIS “Historical Average Processing Time Report
Approximate number of I-526 pending as of March from China-born petitioners8,6004,900M. Estimated from USCIS report for 10/2018; DOS report for 11/2021
Approximate number of  pending I-526 with visas available8,485N=A-M
Number of I-526 expedite requests granted by USCIS9367 (to date)O. USCIS report in declaration for litigation
Theoretical hours of “Touch time” per I-526 reported by USCIS and used by DHS as a basis to budget for needed I-526 fee revenue8.65P.  2019 DHS Fee Rule
Actual “touch time” hours per I-526 adjudication calculated from completions per I-526 adjudicator in the quarter ended March 319.083.5Q=(61 days*8 hours day)/Row I
I-526 filing fees associated with pending I-526 ($ millions)$75$61$49R=A*$3,675
Percent of I-526 decisions in the quarter ended March 31 that were denials or withdrawals (not approvals)9%21%67%S. USCIS Immigration & Citizenship Data page reports

Considering the factors summarized above, an individual I-526 or I-526E filed today may avoid an unthinkably long processing time if (1) IPO dramatically increases the amount and productivity of I-526 adjudication resources and/or (2) IPO implements exceptions to the nominally First-Come-First-Served order that benefit that particular I-526, or (3) that particular I-526 or a massive number of other petitioners give up and drop out of the process. Addressing adjudication resources is the best and toughest solution. I have noted no IPO adjudicator job announcements yet this year at (only five openings for management staff) — UPDATE: but a reader informs me that there was an IPO adjudicator job announcement that closed recently. If and when USCIS hires more staff for EB-5, it takes an average 241 days to move a new USCIS adjudicator from hiring decision to completion of basic training, according to the CIS Ombudsman. IPO has not explained why it has assigned only 15% of its employees to adjudicate the Form that accounts for more than 50% of its fee-paid workload, or whether that allocation decision is open to change. To compensate for resource problems, IPO has fiddled with processing order, implementing multiple queues and a visa availability approach that effectively excludes thousands of I-526 from the processing workload. Petitioners have fought to become exceptions to the dreadful processing average by means of expedite requests and Mandamus litigation. And the new EB-5 law encourages special priority for new I-526 associated with rural projects.

The longer I-526 resource problems remain unresolved, the more IPO will face political and industry pressure to adjust processing order, pushing some subset of pending I-526 forward by pushing the other subset of pending I-526 backward.  If the entire system cannot be improved with sufficient resources to provide reasonable processing for everyone, then pressure will build to improve processing times inequitably for at least a few constituents. I do not want to see I-526 processing replicating the cynical tragedy already in place at the visa stage, where “reserved visas” offer to fast-track new applicants by excluding and displacing backlogged applicants. USCIS must address I-526 resources to avoid resorting to processing inequalities and broad-based damage.

I particularly highlight I-526 processing and backlog issues, because I-526 processing is the engine for the entire EB-5 immigration process. But I-526 problems are not unique. USCIS as a whole is laboring under resource and backlog challenges. Current DHS and USCIS leadership recognize and deplore the agency-wide problems, which is encouraging. Their sympathetic attention illuminates the magnitude and the systemic nature of problems, which is useful but less encouraging.  In recent statements, webinars, and reports on processing conditions across USCIS, I hear principled commitment to improve more than practical hope for broad-based change any time soon. This shapes my expectations for improvement EB-5 processing – a small part of the total immigration system.  

My expectations for processing improvements must also consider mixed incentives even among EB-5 stakeholders. Who is willing to take the first step toward affecting change — identifying and discussing EB-5 processing problems — when the problems look discouraging? Who needs to care if a protracted EB-5 process increases the time to hold EB-5 funds under management and defers government oversight? Who needs to think about what happens after investors file I-526 or I-526E, when most incentives for service providers, projects, and regional centers come before petition filing? Among those motivated to care about immigration outcomes, how many will slog through articles like this instead of clinging to hopeful guesses? Here’s a gauntlet. Let’s see our industry warriors, fresh from successful I-956 battles, take up the fight to salvage processing conditions for investor petitions.

For further insight into the context of EB-5 processing, I recommend the CIS Ombudsman 2022 Annual Report to Congress. “This year’s Report examines the ‘snowball effects’ and pain points associated with backlogs and recommends actions USCIS can take to address not only the human consequences suffered by applicants, families, and employers but also the detrimental impacts on the agency … This article examines how the agency arrived at the crisis of backlogs which is now threatening to overwhelm it and highlights some of the steps it is taking to overcome this challenge.” A really excellent report: thoughtful, substantial, and sympathetic. EB-5 stakeholders should note the insightful analysis of resource constraints (not EB-5-specific, but applicable), and the detailed discussion of the EAD and Advance Parole processes and the expedite process. Regarding parallel issues with Department of State and consular processing, see the study Mounting Backlogs Undermine U.S. Immigration System and Impede Biden Policy Changes (February 23, 2022) by the Migration Policy Institute. See also U.S. Citizenship and Immigration Services: Actions Needed to Address Pending Caseload by the Government Accountability Office (August 18, 2021).

I-526 Processing Update (May 2022)

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

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

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

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

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

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

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

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

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

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

FY2021 EB-5 visas issued by country, and analysis of constraints on visa issuance

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 if you want a personalized (but still unfortunately complicated and qualified) guided tour. Note also my page of EB5 Timing resources.

Links to sources referenced in charts:

Impact of Reserved Visas in the EB-5 Reform and Integrity Act of 2022  (analogy, law, data, application, Oppenheim comments)


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. [6/21/2022 Update: DOS has announced that it interprets reserve visas as only available to applicants who file I-526 after March 15, 2022, and unavailable to the backlog.] 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:

  1. 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).
  2. 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.
  3. Data: I lay out data for historical EB-5 visa demand, supply, and allocation.
  4. 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.
  5. Conclusion: I consider possibilities for making the reserve visas law turn out less bad for our past clients than it could be

(This post replaces my previous analysis in opposition to set-aside visas in March 2018, May 17, 2019, May 21, 2019, May 2021, and Sept. 2021.).

Part 1: Analogy

Airport AnalogyEB-5 Parallel
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 2022Specific changes made by 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? [6/21/2022 Update: DOS has announced that it interprets reserve visas as only available to applicants who file I-526 after March 15, 2022, and unavailable to the backlog.]

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.

  1. 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.
  2. 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.
  3. 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.
  4. 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.
  5. 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”)
  6. 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.

FY2022 Q1 USCIS Processing Report

USCIS has updated the Citizenship and Immigration Data page with performance data for FY2022 Q1 (October to December 2021).

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.

EB-5 Form Data from the USCIS FY2022 Q1 All Forms Report

DescriptionReceivedApprovedDeniedTotal completed FY2022 Q1Pending  at period endProcessing Time (months)
I-526Immigrant Petition by Alien Investor18916456113,13240.8
I-829Petition by Investor to Remove Conditions on Permanent Resident Status6182992732611,73141.2
I-924Application For Regional Center Designation Under the Immigrant Investor Program –   –   –   –  138 N/A
I-924AAnnual Certification of Regional Center344 –   –   –  1,734 N/A


  • 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.)

FY2021 Q4 update on I-526 and I-829 Processing

USCIS has updated the Citizenship and Immigration Data page with performance data for FY2021 Q4 (July to September 2021).

EB-5 Form Data from the USCIS FY2021 Q4 All Forms Report

I-526 ReceiptsI-526 ApprovalsI-526 Withdrawals, Denials, RevocationsTotal I-526  Final ActionsPeriod-end Pending I-526
Oct – Dec 2020911,0041191,12313,746
Jan – Mar 20219875213088213,044
Apr – Jun 2021169 (incorrect, should be 512)59213572712,798
Jul – Sep 2021456 (incorrect, should be 113)5026631613,008
FY2021 Total8142,3986503,048
I-829 ReceiptsI-829 ApprovalsI-829 Withdrawals, Denials, RevocationsTotal I-829 Final ActionsPeriod-end Pending I-829
Oct – Dec 2020205641416829,894
Jan – Mar 20211,0535663760310,356
Apr – Jun 20211,2494024644811,160
Jul – Sep 20217944048749111,448
FY2021 Total3,3012,0132112,224

Notes on corrections:

  • This USCIS report mistakenly credits I-526 that were filed in the last days of June 2021 (the filing surge between the Behring decision and RC program expiration) as receipts in July to September 2021. The corrections I entered come from the different I-526 receipt data in this report:
  • 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 sent201620172018201920202021TOTAL

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 DayFinal I-526 Actions CompletedIntermediate I-526 Actions Completed
1-Dec WednesdayDenied 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-Dec ThursdayNoneRFE sent to an I-526 filed November 20, 2019
3-Dec FridayNoneRFE 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-Dec MondayNoneNotice sent to an I-526 filed in February 2017
7-Dec TuesdayDenied an I-526 filed in September 2018RFE sent to an I-526 filed March 2018
RFE sent to an I-526 filed November 20, 2019
8-Dec WednesdayNoneNone
9-Dec ThursdayNoneNotice sent to an I-526 filed in April 2019
10-Dec FridayNoneNone
13-Dec MondayNoneNone
14-Dec TuesdayNoneNone
15-Dec WednesdayNone (re-issued an approval notice sent to the wrong address)None
16-Dec ThursdayApproved 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-Dec FridayNoneNone
20-Dec MondayDenied an I-526 filed in 2017RFE sent to an I-526 filed November 20, 2019
21-Dec Tuesday Notice sent to an I-526 filed November 20, 2019
22-Dec WednesdayNoneNone
23-Dec ThursdayNoneNone
24-Dec FridayHoliday 
27-Dec MondayNoneNone
28-Dec TuesdayNoneNone
29-Dec WednesdayNoneNone
30-Dec Thursday RFE sent to an I-526 filed July 2019
31-Dec FridayNoneNone

Looking forward to new legislation and new leadership at IPO to turn this situation around.

December 2021 Visa Bulletin (airport analogy)

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.

Minimizing FY2022 Visa Loss

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?

Data insights for the future of EB-5

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.)

I-829 Status Report as of August 2021

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.

Consider first official data sources: the USCIS Check Case Processing Times Page and the USCIS Immigration and Citizenship Data page.

A few points evident in this official data:

  • 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.
  • Apparently USCIS does care about I-829 petitioners, at least enough to post this update last week: “USCIS Extends Evidence of Status for Conditional Permanent Residents to 24 Months with Pending Form I-751 or Form I-829”  (Although… why extend receipt notices to only 24 months in reaction to I-829 processing times that have been consistently reported to be well over 30 months?  It’s puzzling.)

In-process EB-5 applicants and legislative stakes

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 StageEB-5 investor received a visa yet at this stage?EB-5 investment must be deployed at this stage?Estimated Timing as of 2020Estimated number of regional center investors at this stage as of 2020Estimated 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)NOYES2-17+ years[iii]Over 40,000[iv]Over 80,000 [v]  
Conditional permanent residence stageYES (conditional)YES2 years[vi]About 6,000[vii]About 18,000[viii]
Remove conditions on permanent residence (I-829)YES (conditional)Not required for immigration1-5 years[ix]Over 9,000[x]About 21,000[xi]
Finish: Proven job creation and  permanent residencyYES  Not required for immigration   
Total  5-20+ yearsOver 55,000About 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.

[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. 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

[iv] As of April 2020, USCIS reported 16,633 pending I-526 petitions for EB-5 investors, and 24,005 approved I-526 petitions for EB-5 investors who did not have visa availability yet according to the visa bulletin. A third category is unreported, but likely in the thousands: approved I-526 with visas available but not yet issued. Over 95% of these pending and approved I-526 are likely for regional center investors, judging by past experience. (The regional center category accounted for 95% of EB-5 visas issued from 2012 to 2019.) References: “I-526 Performance Data FY2020 Q1” “Count of Approved I-140, I-360 and I-526 Petitions as of April 20, 2018 with a Priority Date On or After May 2018” and “Annual Report of the Visa Office”

[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

[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

[vii] People in the CPR stage in 2020 received green cards in 2018-2019. In 2018, 3,160 visas were issued to principal applicants through the regional center program. In 2019, 3,135 visas were issued to principal applicants through the regional center program. See Table 7 of the DHS Yearbook of Immigration Statistics for 2018 and 2019

[viii] People in the CPR stage in 2020 received green cards in 2018-2019. The Department of State reports issuing 8,995 regional center EB-5 visas in 2018, and 9,064 EB-5 visas to regional center investors in 2019. These figures include investors (principal applicants) and family members. See “Immigrant Visas Issued and Adjustments of Status Subject to Numerical Limitations (by Foreign State of Chargeability): Fiscal Year 2019” and “Immigrant Visas Issued and Adjustments of Status Subject to Numerical Limitations (by Foreign State of Chargeability): Fiscal Year 2018”

[ix] I-829 processing has taken 1-5 years, according to processing time reports from USCIS.

[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.

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

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

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

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

I-526 Status Report: July 2021

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?

FormPending Inventory as of 3/31/2021Completion Rate (Average Touch Time per Form)Status during regional center program expiration
I-52613,044 (direct I-526 likely <10% of total)8.65 hoursOnly direct EB-5 I-526 are being processed
I-82910,3658.15 hoursAny forms can be processed
I-92415234.95 hoursNo forms can be processed
SourceQuarterly reportProposed Fee RuleWebsite Alert
Investor Program Office Workload as of 2021

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.”

Authorization (webinars updated), Regulations (articles), FY2021 Q2 Processing Data

With a record level of uncertainty in EB-5, it’s hard to know what to say. But I shall provide resources and processing updates, at least.

Regional Center Program Authorization Legislation Updates

  • USCIS has not yet published guidance for the now-inevitable regional center program expiration/lapse as of July 1. 6/30 UPDATE: Now USCIS has published an alert on the website page for Approved EB-5 Immigrant Investor Regional Centers.
  • 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 (updated as of June 25), the USCIS Policy Manual Vol. 6 Part G, and the EB-5 page at 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 Update and 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.”

A second piece of good news:   On June 24, the Senate Judiciary Committee advanced Ms. Ur Jaddou’s nomination for USCIS director, bringing her bringing the nomination closer to a full Senate vote.

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.

I-526ReceiptsApprovalsDenialsTotal ProcessedPending
Jan 2021 to Mar 20219875213088213,044
Fiscal Year to Date1891,7562492,005
Jan 2021 to Mar 20211,0535663760310,356
Fiscal Year to Date1,2581,207781,235
EB-5 Form Processing Data from

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.