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. https://crsreports.congress.gov/product/pdf/IF/IF11344

[ii] EB-5 investment must remain sustained in the U.S. enterprise and deployed (“at risk”) at least through the end of the investor’s conditional permanent residence period. USCIS Policy Manual Vol. 6 Part G Chapter 5(A)2. Approximately 46,000 regional center investors have not yet reached the end of the conditional permanent residence period, as calculated in Table. 1. Each of these investors must have invested a minimum of $500,000.  46,000x$500,000=$23 billion

[iii] The process to qualify for conditional permanent residence starts with I-526 petition processing, and ends with a visa application and wait for visa availability. I-526 processing has taken 1-5 years, according to processing time reports from USCIS. https://www.dropbox.com/s/dfa4ifgop1vhm63/IPO%20Times%20Dates.xlsx?dl=0 For countries with no visa wait, the visa application normally takes six months or more. Countries with historically high EB-5 demand face a long wait for visa availability at this stage. As of October 2020, Charles Oppenheim, Chief of the Visa Control & Reporting Division at the U.S. Department of State, estimated wait times for EB-5 visa availability for investors filing I-526 “today.” The longest wait time, for China-born investors, was estimated at 17.2 years. The wait times for Vietnam and India were estimated at 7-8 years. See slide 10 of “Part 1: A discussion with Charles Oppenheim” (November 19, 2020) 2020 IIUSA Virtual Forum https://iiusa.org/wp-content/uploads/2020/11/Virutal-Industry-Forum-Visa-Update.pdf

[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” https://www.uscis.gov/sites/default/files/document/data/I526_performancedata_fy2020_qtr1.pdf “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” https://www.uscis.gov/sites/default/files/document/data/EB_I140_I360_I526_performancedata_fy2020_Q1_Q2.pdf and “Annual Report of the Visa Office” https://travel.state.gov/content/travel/en/legal/visa-law0/visa-statistics/annual-reports.html

[v] Charles Oppenheim, Chief of the Visa Control & Reporting Division at the U.S. Department of State, estimated a grand total of 83,003 prospective EB-5 visa applicants in process as of October 2020. This estimate includes applications on file at the National Visa Center and estimated applicants associated with I-526 petitions pending at USCIS. It does not include EB-5 applicants with pending I-485 status adjustment petitions: a population in the thousands. Over 95% of the estimated total EB-5 applicants are likely associated with regional centers, judging by past experience. (The regional center category accounted for 95% of EB-5 visas issued from 2012 to 2019.) See slide 9 of “Part 1: A discussion with Charles Oppenheim” (November 19, 2020) 2020 IIUSA Virtual Forum https://iiusa.org/wp-content/uploads/2020/11/Virutal-Industry-Forum-Visa-Update.pdf

[vi] The Conditional Permanent Residence Stage is defined as two years from the date that the green card was granted. USCIS Policy Manual Vol 6. Part G Chapter 5

[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 https://www.dhs.gov/immigration-statistics/yearbook/2018/table7 and 2019 https://www.dhs.gov/immigration-statistics/yearbook/2019/table7.

[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” https://travel.state.gov/content/travel/en/legal/visa-law0/visa-statistics/annual-reports/report-of-the-visa-office-2019.html and “Immigrant Visas Issued and Adjustments of Status Subject to Numerical Limitations (by Foreign State of Chargeability): Fiscal Year 2018” https://travel.state.gov/content/travel/en/legal/visa-law0/visa-statistics/annual-reports/report-of-the-visa-office-2018.html

[ix] I-829 processing has taken 1-5 years, according to processing time reports from USCIS. https://www.dropbox.com/s/dfa4ifgop1vhm63/IPO%20Times%20Dates.xlsx?dl=0

[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 ecfr.gov (updated as of June 25), the USCIS Policy Manual Vol. 6 Part G, and the EB-5 page at USCIS.gov still say that the minimum EB-5 investment amount is $1.8 million, or $900,000 in a TEA designed by USCIS. EB-5 lawyers agree that the June 22 court win did indeed return the EB-5 investment amounts to $500,000 or $1 million in a State-designated TEA, and that I-526 can be filed at this level so long as the June 22 change still applies. The expert lawyers do not agree on the probability that USCIS will go on to approve I-526 filed at the lower investment level, or how and how soon and for whom the rules may change back again. I’ve started a table lining up the variety of opinions I’m seeing/hearing on regulations-related questions, and may publish it later once I have more feedback. A few expert reference articles available so far:

EB-5 Form Processing 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
I-829
Jan 2021 to Mar 20211,0535663760310,356
Fiscal Year to Date1,2581,207781,235
EB-5 Form Processing Data from https://www.uscis.gov/sites/default/files/document/reports/Quarterly_All_Forms_FY2021Q2.pdf

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.

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

Request for Public Input

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

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

Reauthorization

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

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

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

RFEs and Litigation

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

Consular Processing and Visa Updates

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

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

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

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

Processing Time Report Update

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

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

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

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

Sharing I-526 Experience

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

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)

FormReceivedApprovedDeniedPending
I-5265390423615,063
I-8297407326210,304
I-924D*4545163

*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.

Filing MonthI-526 receipts from ChinaI-526 receipts from all Other CountriesTotal I-526 receipts
July 201877173250
August 2018107281388
September 20181658531018
October 2018120538658
November 201858239297
December 201882706788

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

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

A few points to note:

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

FormReceiptsApprovalsDenialsPending
I-5264057634615,955
I-8297397252310,332

Notes on the charts:

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

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

EB-5 process illustration (Visa Bulletin questions)

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

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

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

Points I particularly want to make with this image:

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

Application to timing questions:

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

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

EB-5 Visa Availability in FY2021

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

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

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

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

What does this mean?

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

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

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

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

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

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

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

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

Quoted from the October 2020 Visa Bulletin

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

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

F. VISA AVAILABILITY IN THE COMING MONTHS

EMPLOYMENT-based categories (potential monthly movement)

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

China:       No forward movement
Vietnam:   Limited forward movement

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

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

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

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

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

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

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

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

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

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

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

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

Processing Time Report Update

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

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

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

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

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

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

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

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

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

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

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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.