FY2021 Q1 EB-5 Performance Data

The USCIS Citizenship & Immigration Data page has published performance reports for FY2021 Q1 (October to December 2020), with data for EB-5 form receipts and adjudications. Since the full reports are formatted to be almost unreadable, I clipped out content most significant to EB-5 from the All Forms report and I-485 report. These summaries are followed by notes and charts that put the FY2021 data in context of previous reports.

General Comment

Overall, the numbers for October 2020 to December 2020 show low receipts, low productivity, and a faulty record-keeping system. But this time period represented dark pandemic days, and lingering Trump administration leadership on immigration. So I do not consider the period characteristic, or necessarily indicative for future performance. I am not ready to predict the current/future trends until I hear from new USCIS leadership, and start to see performance data for this year.

Report Format

For the first time, the All Forms performance report adds columns for total processed petitions, and processing times. That’s nice.

As with the annual report, the quarterly-report processing times are significantly lower than the median times reported day-by day for the same period. (For example the USCIS Processing Times Page reported median times for I-829 of 35 months in October, 36.5 months in November, and and 33 months in December, per my log of contemporary reports. And now this quarterly report states that 50% of I-829 processed October to December 2020 took less than 31.5 months to process.)

I-526 Performance Data Notes

The I-526 data reported for FY2021 Q1 shows that USCIS struggles to count inventory, even after taking over three months to generate the report.

We don’t know how many I-526 were filed in Q1, because the report gives a letter “D” in place of I-526 receipts. The report code explains that “D” means “Data withheld to protect applicant’s privacy.” Another definition could be “Data withheld to disguise our counting errors.” In theory, last quarter’s period-end pending petitions plus this quarter’s receipts minus this quarter’s approvals and denials (which also includes withdrawals) should equal this quarter’s period-end pending petitions. If that equation gives a false result, then something’s wrong with USCIS data reporting. Doing this equation quarter by quarter (as I do in a table below), shows discrepancies every quarter. Using the equation to solve for receipts in FY2021, I see that “D” masks a negative number: -194 to be exact. EB-5 demand would plausibly have been low October to December, but can’t have been actually negative! So USCIS must have miscounted approvals/denials or pending in Q1, or possibly compensating for errors in previous quarters. This quarter’s I-526 report is not very helpful, except as additional ammunition for Mandamus lawyers demonstrating to judges that USCIS self-reporting is confusing at best and unreliable at worst.

I-829 Note

I-829 receipts were down significantly in FY2021 Q1, and calendar year 2020 overall. In theory, I-829 filings to remove conditions should be fairly steady, reflecting the steady pace of EB-5 visa issuance two years previously. When I-829 receipts fall, I worry that some disaster befell the cohort of EB-5 investors who entered the U.S. 21 months earlier. I want I-829 numbers to show success through to the EB-5 finish line. (Update: BOS InvestorVoice makes a good point in the comments: USCIS struggled in 2020 to issue I-829 receipt notices, with mutliple I-829 applicants reporting severe delays just to get the notice. That could explain low recorded receipt numbers even if I-829 submissions were in fact as high as ever.)

On the bright side, I-829 processing productivity only fell a little in Q1, and the approval rate remained high (94%).

Investor Program Office Productivity

Between Q3 and Q4 2020, IPO had exhibited an encouraging 16% increase in number of forms processed (I-526 plus I-829).  Q1 FY2021 regressed again, with 7% fewer forms processed than the previous quarter. Sarah Kendall left IPO after November 2020 according to her LinkedIn page, so FY2021 Q1 represents the end of her direct influence. I warmly hope that future FY2021 reports will show the positive effect of new leadership at IPO (though Kendall still looms as USCIS Regional Director). IPO has so much room for productivity improvement, considering that they used to regularly process three times more forms with fewer staff than they have today.

I-485 Note

I do not usually report I-485 data because USCIS does not itemize EB-5-based I-485. The report just gives aggregate numbers for all EB category visas. However, this post highlights employment-based I-485 performance data specifically for the California Service Center, which I understand is responsible for most (all?) EB-5 I-485 decisions, and which is apparently having a meltdown. In FY2021 Q1, the California Service Center approved a record-low only 38 Employment-Based I-485 per the report (having previously averaged 300-400 EB approvals per quarter), and ended with a record-high backlog of 5,027 Employment-Based I-485 pending. Ms. Mendoza Jaddou, please hurry up and get confirmed as USCIS Director, and then find out what’s going on at the California Service Center. No one wants to see the processing times that will result if 5,000+ Employment-based I-485 continue to get processed at a rate of fewer than 100 forms per quarter. If indeed EB-5 I-485 are all ultimately forwarded to the California Service Center for adjudication, how about reconsidering that decision in light of recent performance? Too many EB-5 visas have been lost already.

Plug

Collecting and processing EB-5 data has become increasingly difficult and time-consuming. If my analysis helps you, please consider a PayPal contribution to support my work. Thank you!

I am not currently promoting my I-526 timing estimate service, due to limited recent information. After I see 2021 data and hear from new leadership at IPO, I will be better able to judge the current trend and make educated estimates about the future.

EB-5 visas issued by country in 2020

All sections of the Department of State’s Report of the Visa Office 2020 are now available. In the past, I have analyzed reports of EB-5 visa issuance by country as an indicator of EB-5 visa demand. But for 2020, the numbers tell a story about visa processing constraints. The distribution of EB-5 visas issued in 2020 by country, type, and path does not reflect who wanted visas, but who was lucky to get visas despite massive COVID-19 restrictions and processing bottlenecks.

I think the headline in 2020 visa data is Adjustment of Status. The Report of the Visa Office reports total EB-5 visas issued (Table V) and EB-5 visas issued by consulates (Table VI). The difference shows the number of EB-5 visas issued to applicants using I-485 to adjust status in the U.S.. When consular processing nearly shut down back in March/April 2020 even as USCIS continued to operate, I had hoped that USCIS might pick up some slack, and process more EB-5 I-485 to help prevent loss of visa numbers. Now, looking at the data, I see that USCIS did complete a few more I-485 than usual for Chinese and Indians in 2020, but overall even fewer I-485 visas than in the previous three years.

I doubt that dropping I-485 visa numbers can be attributed to falling demand (Charles Oppenheim mentioned in the November 2020 IIUSA meeting that USCIS had approximately 2,500 I-485 pending for China-born applicants alone.) I am more inclined to blame conservative visa bulletin movement (for low China numbers) and glacial USCIS processing (for low numbers overall). EB-5 visa issuance has generally dipped over the past four years — and that not due to falling demand (backlogs are higher than ever) or reduced visa quotas (the visa limits were actually higher than average since FY2017). COVID-19 gets credit as the major constraint in 2020, but apparently it’s not the only depressing factor. (UPDATE: in today’s “Conversation with Charlie” on the Visa Bulletin, Charles Oppenheim confirmed that indeed, Department of State is not able to move the visa bulletin specifically to maximize adjustment of status during consular closures. Start listening at about minute 32 for discussion of China EB-5 visa movement. The webinar also mentioned that over 9,000 Chinese EB-5 applicants are already “ready to go” at the current final action date, and thus the date is unlikely to move “for the foreseeable future” — at least this fiscal year.)

Note also the multi-year trend in consular processing across all categories.

And now, for my usual table itemizing EB-5 visas issued to countries that received at least 20 visas during the year. But again, I would not make many conclusions from these numbers, which reflect more than anything the accident of which applicants happened to be lucky to get visa interviews in October 2019 to February 2020.

FY2020 Q4 EB-5 Form Data, Mayorkas Nomination, Backlog for China 2015

FY2020 Q4 EB-5 Form Data

The USCIS Citizenship & Immigration Data page has posted data reports for FY2020 Q4 (July to September 2020).  Data for Forms I-526, I-829, and I-924 can be found in All USCIS Application and Petition Form Types (Fiscal Year 2020, 4th Quarter, Jul. 1-Sep 30, 2020) (PDF, 129.47 KB)

EB-5 Form Data for FY2020 Q4 (July to September 2020)

*Redacted in the report, but must be 129 since there were 124 I-924 pending at the end of Q3

The numbers are basically consistent with the previous quarter’s report, and with my expectations. I-526 and I-829 productivity improved again – by a hair. I-526 receipts remained low, as has been the case since the perfect storm of investment amount increase, lengthy wait times, economic upset, and COVID-19. Denial rates were lower than last quarter, though still higher than average. As usual, I’ve assembled charts below that put the numbers in historical context.

Mayorkas Nomination

The best news for future processing productivity and processing times is that Mr. Alejandro Mayorkas may be about to be approved as Secretary of Homeland Security. His nomination was advanced out of committee yesterday. When Mr. Mayorkas was director at USCIS (2009-2013), one of his goals was to build greater expertise, professionalism, and transparency into administration of the EB-5 program, and he pursued that goal with energy. Faced with problems in adjudication from lack of expertise in business and economics, he arranged for the EB-5 team to hire staff at a higher grade who would bring such expertise. Noting need for more coordination with other government agencies, including SEC and FBI for enforcement, he arranged to relocate the entire EB-5 team from California to Washington DC, creating the Investor Program Office. Noting the problem of undefined and untransparent requirements, he pushed publication of the first major EB-5 Policy Memo in 2013. Learning about the issue of inconsistent adjudications, he created a Discretion Review Board. EB-5 stakeholder engagements were quarterly under his watch, and he frequently participated personally to hear about stakeholder concerns. When members of Congress contacted USCIS about constituent problems with adjudication, Mr. Mayorkas paid attention to the inquiries and frequently got personally involved in addressing the inquiries, overruling and chiding adjudicators if necessary. All this wonderful and officious activity earned Mr. Mayorkas a large target on his back, and the Inspector General eventually wrote a report about three of the hundreds of cases in which he interfered – a report that we’ll never hear the end of, and which concluded that he was guilty of creating an appearance of favoritism. (I wrote about this in 2015.)  But for those of us who want the EB-5 program to be administered with expertise, professionalism, and transparency, having Mr. Mayorkas at the top at DHS is great news. Just listen to these beautiful words from his nomination hearing on January 19, when he was explaining his approach to leadership at USCIS: “USCIS is an agency that adjudicates cases. That’s what it does. When I had authority and responsibility to fix problems, I fixed problems in the cases the agency handled. It is my job to become involved, to learn the problems that an agency confronts, to become involved in those problems, and to fix them, and that’s what I did.”

Not that Mr. Mayorkas will have much time for EB-5 specifically (indeed, EB-5 administration slipped somewhat back when he moved on from USCIS to become deputy DHS secretary). But at least he should set a positive tone from the top. Those plummeting downward lines that we see in the EB-5 adjudications chart above will eventually trend sharply upward again, I hope. I almost wish that Sarah Kendall were still in charge at IPO, so that in fairness she could have a chance to perform under leadership that instructed her to value efficiency, transparency, and order. I heavily criticized her tenure for decimating productivity at IPO and destroying stakeholder trust, but I believe that she may have been simply and competently pursuing the objectives she was instructed to accomplish.

(As a side note, thank you to everyone who contributed to my Ombudsman survey form! I summarized and submitted your input to IIUSA to bring to the attention of the CIS Ombudsman. I hope that these concerns will make it to an open ear in USCIS leadership.)

China 2015 Backlog and Visa Bulletin Movement

And finally, a note for Chinese EB-5 investors who filed I-526 in 2015 and still waiting for visas. I have a lengthy post or article coming for you eventually, but keep modifying my analysis because it’s all so complicated! But note that this new report which has some significant information for you:  Form I-140, I-360, I-526 Approved EB Petitions Awaiting Visa Final Priority Dates (Fiscal Year 2020, Quarters 3 and 4) (PDF, 108.43 KB)

The report format is tough to interpret (I previously tried to explain it with pictures here.) In short, the report gives (A) a number of Chinese applicants who have approved I-526 but CANNOT move forward to final action based on the Visa Bulletin. That is not very helpful, because what we really want to know is (B) how many Chinese have approved I-526 plus CAN move forward to final action based on the Visa Bulletin.

I want to know (B), because that is a clue about when the visa bulletin will move again. If (B) is a small number, then the visa bulletin will need to move again soon to allow more people to join the group at the finish line, ready for final action. If (B) is a large number, greater than the number of visas available in the near-term, then final-stage applicants already exceed supply and the visa bulletin will not need to move again for awhile.

It occurred to me that the USCIS report is indirectly helpful, because (in the special case of China in 2020) we can infer (B) from the change over time in (A). Specifically, by the difference in numbers reported in the April 2020 and November 2020 reports.

The number of Chinese applicants who have approved I-526 but CANNOT move forward to final action (A) is increased over time by number of I-526 approvals, and decreased the number who CAN move to final action thanks to visa bulletin movement.  The number of Chinese who have approved I-526 plus CAN move forward to final action based on the Visa Bulletin (B) is increased over time by applicants released by the visa bulletin, and decreased over time by applicants receiving visas. However, for China, half of those variables are near zero. There should be few-to-no incoming I-526 approvals since April 2020, because the I-526 visa availability approach that took effect in April 2020 limits adjudication of I-526 without visas available. Thus I think we can discount additions to (A) for China in 2020, and only look at subtractions. The consulate in Guangzhou has issued 0 EB-5 visas since March 2020, so I think we can almost discount subtractions from (B) and mainly look at additions. (The only Chinese visa completions since March 2020 have been from adjustment of status, and that number is low. Chinese apparently received only 489 visas through AOS in FY2020.)

Therefore, I conclude that the difference between the reported numbers of approved I-526 awaiting visa availability in April 2020 and in November 2020 about equals the number of principal applicants who were released to the visa stage by Visa Bulletin movement since April 2020, and still waiting there, with their families, for visas. Referring to the above tables: 23,511-21,253=2,258 approved I-526 (i.e. principal visa applicants). 2,258 principal applicants means about 6,136 total visa applicants. (Considering that for Chinese visas issued in FY2018, principals accounted for 36.8% of total applicants.) So I think we can conclude that there are at least over 6,000 Chinese applicants queued up for final action based on the current Visa Bulletin Final Action Date of August 15, 2015. As of November 2020, Charles Oppenheim was estimating that it might be practically possible to issue about 3,000 visas to China in FY2021. I’m guessing that picture isn’t any better today considering that the consulate in China still has no timeline for resuming EB-5 visa interviews, and USCIS remains slow. If there are already 6,000+ people queued up for only around 3,000 spaces, then that’s already a big crowd at the visa final action stage. The visa bulletin won’t need to move any time soon to increase the size of that crowd. Thus I doubt the Visa Bulletin Chart A date will move for China in FY2021 at all, unless a miracle makes the consulates/USCIS able to work double time and actually issue the over 10,000 visas theoretically available to China this year under the unusually high FY2021 EB-5 visa quota. As I said, though, this is all very complicated. I may well revise or refine this analysis in the future as I receive more information or corrections. And please share your insights!

(Note that I don’t attempt to interpret the Vietnam EB-5 numbers on this report, because there’s no way to guess how the Vietnam number was affected by incoming I-526 approvals vs. exits to the visa final action stage.)

I-526 Processing Status

Under the threat of a potential law change that would re-organize the EB-5 visa wait line, people who currently face no visa wait are especially eager to know when they can receive I-526 approval and get visa applications filed. My timing consultation analysis calculates where IPO should be with I-526 processing for given dates on average, considering the composition and movement of the entire queue, official and unofficial guidelines for I-526 processing order, and anecdotal evidence. But a couple other sources also indicate which petitions are getting touched right now: the USCIS Case Processing Times page and the USCIS Check Case Status tool.

The USCIS Case Processing Times Report for Form I-526 currently gives an “estimated time range” starting at 27.5 months for countries with visas available. According to the claimed methodology, that report means that 50% of I-526 decisions in October 2020 were on cases less than 27.5 months old – i.e. filed more recently than June 2018.

The USCIS Case Status Online tool gives more current and specific information. A petitioner can enter his I-526 receipt number on this page to get a current status report for his individual case. Nothing practically prevents the petitioner or his app from also entering groups of receipt numbers, to see what’s happening with other petitions filed at around the same time. I don’t use this method myself but think it’s fair game for investors to do so, and several of my blog readers have shared the results of their investigations.  The Case Status check method indicates that a large percentage of I-526 filed up through August 2018 have been assigned for adjudication and already seen action (at least an RFE), and that September 2018 I-526 are now being worked on. For example, see this analysis published by blog commenter Web. And thank you to others who have also shared their work with me.

With this in mind, if you filed I-526 before August 2018 and have heard nothing yet, you might talk to your lawyer about starting to pursue the available inquiry channels to make sure that your I-526 did not fall through the cracks. (The huge deviation in processing times shows that IPO in fact has all kinds of reasons for processing I-526 out of date order, but at least you know that you are out of order and can inquire accordingly.) If you filed I-526 in September 2018 or soon after, then you can look at I-526 filing trends to guess how much longer you may have to wait, considering the most recently reported processing speed (average 300 decisions per month) and that China I-526 from 2018 are not currently being assigned. (If much later, then one also needs to factor in the assumption that processing speed will probably change in the future.) Here’s a clip of data that I’ve collected from a variety of sources on distribution of I-526 receipts in late 2018.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

A few points to note:

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

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

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

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

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

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

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

FY2020 Q3 Processing Data

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

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

Notes on the charts:

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

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

EB-5 Visa Availability in FY2021

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

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

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

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

What does this mean?

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

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

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

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

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

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

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

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

Quoted from the October 2020 Visa Bulletin

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

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

F. VISA AVAILABILITY IN THE COMING MONTHS

EMPLOYMENT-based categories (potential monthly movement)

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

China:       No forward movement
Vietnam:   Limited forward movement

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Notes:

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

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

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

FY2020 Q2 EB-5 Form Processing Data

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

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

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

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

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

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

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

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

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

Consular processing and COVID-19

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

FY2020 Visa Usage

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

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

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

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

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

FY2021 Visa Availability

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

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

Visa Bulletin Movement and Retrogression

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

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

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

Other

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

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

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

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

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

• I-526 Approvals, Denials, and Receipts for Q1 of FY19 (PDF, 812 KB)
• I-829 Approvals, Denials, and Receipts for Q1 of FY19 (PDF, 258 KB)

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

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

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

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

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

And now some charts based on the FY2019 Q1 data.

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

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

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

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