FY2017 Q1 EB-5 Petition Processing Statistics

The USCIS Immigration and Citizenship Data page has been updated with numbers for I-526 and I-829 petitions received and processed in October to December 2016. The numbers show another dramatic improvement in I-526 processing, continuing free-fall in I-829 processing, and another unnatural surge in I-526 receipts. Denial rates remain low. When IPO previewed these numbers in the last stakeholder meeting, they said that I-829 adjudications will improve going forward with a new I-829 team.

I’ve updated my summary charts with the FY2017 Q1 numbers, and also added a new chart pointing out how I-526 filing trends coincide with regional center program sunset dates. Legislators and USCIS have tended to speak as if recent EB-5 investor numbers reflect sustainable trends based on surging interest in the EB-5 program (and/or underpricing or aggressive marketing). My experience and what I read indicates that the surges are rather fueled by uncertainty about program changes, such that people who would otherwise have considered EB-5 years in the future are hustling all at once to make investments now while the program is still viable. That kind of demand is not sustainable. In fact it means that all else being equal we’ll see fewer investments in the future, because tomorrow’s demand is being pulled into today (and tomorrow’s visas are being claimed today). The increasing supply of EB-5 investment opportunities (particularly from a few mega-projects, the subject of a forthcoming post) play a role in the surges and backlog, but most of all I blame Congress for keeping the regional center program on edge by repeatedly promising and failing to act on EB-5.

FY2016 EB-5 Visas Stats by Country

The US State Department Report of the Visa Office 2016 has been updated with Table V (Part 3), which gives a breakdown of all EB visas issued by country in fiscal year 2016. I’ve updated my chart with the EB-5 visa numbers. I’m interested to note the growing number of visas based on direct EB-5 investment (8.5% of the total visas versus 1.6% the previous year), the distribution of TEA investments (99.9% of regional center investments but 68% of direct investments), the growing number of visas going to investors from outside mainland China (24% versus 17% the previous year), and the growing national diversity of EB-5 investors. South Korea and Brazil each claimed over a hundred more EB-5 visas in FY16 than FY15, and five new countries entered the list of those with more than 20 visas each: Germany, Argentina, Colombia, Singapore, and Italy. Considering processing times and the visa backlog, these trends likely reflect EB-5 investments made in 2014 and earlier.

For reference, here are links to my posts with summary charts of 2014 visa numbers by country and 2015 visa numbers by country.

EB-5 Regs (Regional Centers), I-924 Process and 2015 Stats, Processing Times

I-924 Approval Data

I try to improve the accuracy of my Regional Center List by requesting regional center designation letters from USCIS through the FOIA process. So far I have logged all initial designations and amendments through 2015. I’m sharing summaries of data points gleaned from the most recent letters in my collection (2015 approvals) to help shed light on processing issues.  As we prepare to respond to the ANPRM, let’s think about what’s wrong with the following pictures, and how to improve the situation.

Status of Amended Regulations

USCIS has published an Advance Notice of Proposed Rulemaking (ANPRM) in the Federal Register. This notice “EB-5 Immigrant Investor Regional Center Program” (Docket No. USCIS-2016-0008) does not unveil any revised regulations, but instead generously solicits stakeholder input to help formulate new rules for regional center designation, the exemplar filing process, continued RC participation, and RC termination. (Docket #0008 references a separate notice “EB-5 Immigrant Investor Program Modernization” Docket No. USCIS-2016-0006 that may cover the other EB-5 topics that we expected to see addressed. 1/12 UPDATE: here is Docket No. USCIS-2016-0006, which proposes new regulations for EB-5 investment amount increases, TEA requirements, priority dates, and other EB-5 matters.)

The bad news about notice #0008 is that it suggests USCIS is in a preliminary stage of thinking about new regional center designation rules, hasn’t actually drafted any regulations on this topic, and doesn’t expect to start for at least another 90 days. (Though hustle might be useless anyway, if Trump makes good on his election commitment to issue a temporary moratorium on most new regulations.) The good news is that notice #0008 demonstrates genuine concern to understand and work with regional center reality, presents thoughtful analysis of the issues, and poses excellent questions. Answers prepared for USCIS in response to the ANPRM should be organized and shared with Congressional staffers as well, since draft EB-5 reform legislation covers the same issues that USCIS aims to resolve, and would benefit from the same input.

Processing Times

Speaking of processing times, here is an email that I should have shared last week.

From: U.S. Citizenship and Immigration Services [mailto:uscis@public.govdelivery.com]
Sent: Thursday, January 05, 2017 11:32 AM
Subject: USCIS Now Uses Specific Dates to Show Case Processing Times

Dear Stakeholder,

Starting on Jan. 4, 2017, we will post processing times using a specific date format rather than weeks or months. This is the first step in providing processing times that are timelier and easier to understand.

We post case processing times on our website as a guide for when to inquire (service request) about a pending case. For the last several years, we have posted case processing times using two different formats:

  • For cases that were within our production goals, we listed processing times in weeks or months.
  • For cases that were outside of our production goals, we listed processing times with a specific date.

Always refer to your I-797C, Notice of Action, and look for “receipt date” to determine when we accepted your case. If the receipt date on the USCIS Processing Times web page is after the date we have listed on your notice, you should expect to hear from us within 30 days. If after those 30 days, you have not heard from us, you may make an inquiry on your case.

We recommend using our e-request tool for all case inquiries. In addition, we have many other services and tools at my.uscis.gov

If you move, remember to update your address for each pending case and receipt number at uscis.gov/addresschange.

Kind Regards,
USCIS Public Engagement Division

Note that this change is cosmetic: processing “as of month” and “as of date” are the same information, just in a different form. But the change is helpful to clarify that the report does not give average processing times, but rather a metric for judging when it’s okay to inquire about case status. FYI here is my spreadsheet of historical IPO processing times with columns translating month to date and vice versa. (But whether considering month or date, keep in mind individual deviations as illustrated above in my scatter plot charts of actual I-924 processing in 2015.)

FY2016 Q4 EB-5 Petition Statistics, Visa Backlog

I wish I had a merrier Christmas post for EB-5 world, but it’s my duty to report sobering statistics from USCIS for EB-5 petition processing as of Q4 FY2016 (ending September 30) and the National Visa Center for pending visa applications as of November 1, 2016.

NOTES

  • I-526 Processing Volume: USCIS sped up considerably in the 4th quarter, processing more I-526 petitions than in prior quarters. 4th quarter decisions were also relatively positive – 91% approvals. However, the 4th quarter was not enough to improve the annual numbers. USCIS still processed fewer and denied more I-526 petitions overall in FY2016 than FY2015.
  • I-526 Receipts and Backlog: The last quarter of 2016 saw another unnatural surge of I-526 filings (thanks for nothing, Congress), further swelling the already huge pool of pending petitions.  If USCIS continues to process about 9,500 I-526s a year (average for 2015/2016), then the 20,805 petitions currently pending will take over two years to process.
  • I-829 Processing Volume: I-829 processing in FY2016 started well and then fell every quarter, from over 800 petitions processed in the 1st quarter to barely 200 petitions by the 4th quarter. The year was still better than FY2015 overall, with 1.7x more completions. USCIS did not report denying any I-829 petitions in the 4th quarter, and the denial rate for the year is a low 5% (but higher than last year’s 1% overall).
  • I-829 Receipts and Backlog: I-829 receipts grew a few percentage points over the course of the year, even as processing slowed dramatically. USCIS ended the year with 6,309 pending I-829 petitions, which would take three to five years to process at the current rate of adjudication.
  • Pending EB-5 Petitions and Applications: There are currently about 20,804 I-526 petitions pending at USCIS (each petition representing one investor who may subsequently apply for about three EB-5 visas) plus about 24,629 EB-5 visa applications already pending at the National Visa Center. This means that the queue of current and committed EB-5 visa applicants now is about 75,000 people long and therefore stretches about eight years into the future. (Assuming that DOS can issue only about 10,000 EB-5 visas a year, and that we don’t – though we might — see major changes from investors dropping out or Congress changing its mind about the total numbers or allocation of visas. Here is a link to my spreadsheet with calculations, for anyone who would like to rethink the numbers.) New China-born investors filing today will go to the back of the line of pending petitions and applications, while new applicants from other countries can look forward to skipping ahead of China-born investors once they reach the visa stage. Considering the line, a China-born investor filing I-526 today might receive a green card in 2024 and think about removing conditions and exiting the investment after 2026, while today’s investor from Brazil may get a green card in 2018 and be ready for exit after 2020. These are unreliable estimates because many possible factors could affect actual timing, but food for thought. I look forward to linking to other commentary and opinions on these numbers.

NOTE: See the comments for additional input and insights

 

Q3 2016 EB-5 Petition Stats, GAO Report, RC List Updates

Path to Reauthorization
I’ve been updating my post Looking toward RC program reauthorization as significant developments come to my attention. I’ll make a new post when the text of new legislation is released. The days between now and September 30 will be interesting. At least the regional center program is less controversial than the Zika virus, so far.

FY2016 Q3 EB-5 Petition Statistics
The USCIS Immigration and Citizenship Data page now has EB-5 petition statistics for the third quarter of fiscal year 2016. IPO processed fewer petitions overall in Q3 than in Q2 2016. I-526 receipts were slightly up from Q2, but still relatively low, and IPO processed more I-526s than it received in Q3. An unusually large number of I-829 petitions were denied in Q3. The backlog remains dire. My charts summarize data for I-526 and I-829 receipts, approvals, denials, and pending petitions from the USCIS reports. I also added bonus charts estimating the amount of investment and number of immigrants associated with petitions filed since 6/1/2015 (to help visualize the impact of retroactive rule changes, and why we don’t want them), and showing IPO staffing levels as reported by Mr. Colucci in EB-5 stakeholder meetings (since staff increases have been a major strategy for tackling the petition backlog) and recent processing time reports.

GAO Report
The U.S. Government Accountability Office has posted a follow-up to its August 2015 EB-5 study that identified weaknesses in USCIS’s fraud mitigation activities. The title of the 9/13/2016 report summarizes the GAO’s new findings: Immigrant Investor Program: Progress Made to Detect and Prevent Fraud, but Additional Actions Could Further Agency Efforts. The 2016 GAO study mentions a number of fraud mitigation measures that USCIS has implemented for EB-5:

  • The Fraud Detection and National Security (FDNS) unit has grown to 25 FTE staff, and IPO has created a specialized group focused on regulatory compliance.
  • FDNS is using overseas staff to attempt to identify potential sources of fraud stemming from any false statements by immigrant investors regarding their source of funds.
  • FDNS has planned at least 50 site visits in four states, and anticipates conducting additional site visits on a continual and as-needed basis. The first site visits began in August 2016.
  • FDNS has conducted risk assessments, and identified securities fraud as the most frequent source of fraud in the program.
  • USCIS has updated I-526 and I-829 forms to help capture additional information about petitioners and applicants that could be used to potentially identify fraud.
  • USCIS conducts selected background checks on all of its immigrant investors and regional-center principals, in cooperation with partners such as the Federal Bureau of Investigation and U.S. Customs and Border Protection.
  • USCIS recently signed a memorandum of understanding with the Financial Crimes Enforcement Network (FinCEN) and anticipates conducting additional reviews to help identify potential fraudulent actors and fraudulent financial activity in its regional centers.
  • USCIS will use I-829 interviews to expand collection of information that could be used to identify fraud. (But so far a comprehensive interview strategy has yet to be developed.)
  • USCIS hopes to implement a case management system for tracking and reporting data related to EB-5 investments and job creation. Project completion is “tentatively planned for some time in fiscal year 2017.”
  • USCIS is developing standard operating procedures for adjudication staff for each investor form, and hopes to finalize these procedures by Q1 of FY2017.

GAO found that USCIS continues to be hindered by a reliance on time-consuming reviews of paper files that preclude certain potential fraud-detection activities such as the use of text analytics to help identify indicators of potential fraud. The continuation of planned efforts to digitize the files, including the supporting evidence submitted by applicants and petitioners, could help USCIS better identify fraud indicators in the program.

Regional Center List Updates
Additions to the USCIS Regional Center List, 08/29/2016 to 09/12/2016

  • APIC Regional Center California (California)
  • AmerAsia EB5 Regional Center SF, LLC (California)
  • American Investment Fund Regional Center, LLC (Oregon, Washington): www.aif-rc.com
  • Invest Atlanta Regional Center (Georgia): www.investatlantarc.com
  • KOIT Global Investments (Indiana, Kentucky, Ohio, Tennessee): www.koitglobal.com
  • Southern California Investments Regional Center (California)
  • Sun Island Regional Center (California)
  • The Flame Regional Center, LLC (New Mexico, Texas)

Renamed:

  • Montana Energy Regional Center LLC (former name USA Montana Energy Regional Center) (Montana)

New Terminations:

  • Resource Regional Center Michigan, LLC (Michigan) Terminated 8/31/2016

EB-5 Petition Processing Q2 2016

The Immigration and Citizenship Data page on the USCIS website has been updated with official numbers for I-526 and I-829 processing from January to March 2016 (FY2016 Q2). Extraordinarily low I-526 receipt numbers in Q2 balance abnormally high numbers in the previous two quarters. I-829 receipts are back on a normal trajectory after that odd dip in Q4 last year. The number of I-526 petitions processed in Q2 went up while the volume of I-829 processing fell proportionally. The previous quarter shows the same trend in reverse, suggesting that IPO has been allocating resources back and forth between I-526 and I-829. Besides the receipt trend, which is important but old news now, I note the number of I-526 denials. One fourth of the I-526 cases processed last quarter were denied — the most denials we’ve seen since 2013. Meanwhile, the petition backlog was dented but remains daunting.

4/25 meeting notes, RC list changes

4/25/2016 Listening Session
Today’s EB-5 stakeholder meeting with USCIS was indeed a listening session — a venue for stakeholder opinions and not for tips and answers from USCIS. In case you’re a lawmaker or regulator and interested in reviewing insightful comments from the public, here is my recording. For the rest of us, who are mainly just curious about what USCIS has to say, here are a few tidbits that came out in the meeting:

  • USCIS will be initiating an IDEA community campaign to collect additional input on EB-5 regulation/policy changes. When that goes live, I’ll post a notice here.
  • I-829 interviews will begin this year, at first virtually, and interviewees may bring counsel, Regional Center representatives, and Regional Center counsel.
  • An audit program for regional centers is being implemented this year, and site visits are being expanded for direct and regional center projects.
  • IPO is up to 126 staff and on track to have 171 employees by year end.
  • IPO did not give any hints about the anticipated content of or timeline for revised regulations or new policy.
  • IPO will work closely with Congress up to the next deadline for regional center program reauthorization (September 30, 2016), and just in case will prepare “what if” guidance for two sunset scenarios: if the Regional Center program lapses but Congress apparently intends to reauthorize it, or if Congress indicates its desire to end the program.
  • IPO Chief Nicolas Colucci reported some preliminary processing data. Q2 2016 receipts: 849 (I-526), 886 (I-829), 40 (I-924). Completions from October 2015 to March 2016 (Q1-Q2 2016): 4,141 (I-526), 1,255 (I-829), 135 (I-924). The big story in these numbers is I-526 receipts, as illustrated in the following figure.
    Q22016I526

Regional Center List Changes
Additions to the USCIS Regional Center List, 04/19/2016 to 04/25/2016

  • Regional Center of the Pacific (California)

Additions to the USCIS list of terminated regional centers:

  • WRC EB-5 Regional Center, Inc. (Washington) Terminated 4/13/2016

Q1 2016 Petition Processing Stats, RC List Changes

Petition Processing Trends

The USCIS Citizenship and Immigration Data page has been updated with data on I-526 and I-829 petition processing in the first quarter of fiscal year 2016 (aka October to December 2015).  The numbers are not heartening. Investor Program Office petition processing volume peaked in April-June 2015, and progressively lost ground over the following quarters.  In Q1 2016, IPO processed 355 more I-829 petitions but 933 fewer I-526s than in the previous quarter.  The I-829 gains are nice, but then the I-829 backlog is only a dire 4,000+ petitions while the I-526 backlog is an extremely dire near-22,000 petitions. IPO cannot afford to be processing fewer and fewer I-526s, or fewer EB-5 petitions overall. The number of I-526 receipts is also striking. We expected the surge in July to September 2015, in advance of the possible September 30th Regional Center Program sunset date, but the numbers show that the surge continued through December. That’s two quarters in a row with over 6,000 I-526 filings each. The program can’t handle many quarters like that, considering that only about 10,000 EB-5 visas are available per year for investors plus family members (not to mention the fact that IPO has only managed to process about 3,000 I-526s a quarter at best). In addition to slowing I-526 processing over the course of the year, IPO got tougher, denying 8% of I-526 petitions processed in Q3 2015, 15% in Q4 2015, and 23% in Q1 2016.
I526q12016
I829q12016
pendingq12016

Regional Center List Updates

Additions to the USCIS Regional Center List, 03/01/2016 to 03/21/2016.

  • American Lending Center Ohio, LLC (Ohio): usa-rc.com
  • American National Regional Center Southern California (California)
  • Discovery Florida, LLC (Florida)
  • East West Global Regional Center (California)
  • Fairhaven Capital Advisors Regional Center (Colorado)
  • MCFI Mississippi / Louisiana (Mississippi): www.mcfiusa.com
  • MCFI New York / New Jersey / Connecticut (Connecticut, New Jersey, New York): www.mcfiusa.com
  • Midwestern Investments For America, LLC (Ohio)
  • Nevada Regional Center Enterprises (Nevada)
  • New York Renaissance Regional Center, LLC (Connecticut, New Jersey, New York)
  • Reliant Regional Center (Minnesota): www.relianteb5.com
  • Socal Investment Regional Center (California)
  • Southwest Florida Regional Center, LLC (Florida)
  • TriHaven Investment Group Southern California (California)

Name Changes:

  • Southern California Commercial Regional Center LLC (former name US Commercial Regional Center) (California)
  • Charter Investor Financial (former name Charter USA Financial LLC) (Florida)

2015 Visa Statistics by Country, RC list changes

2015 Visa Statistics
The US Department of State has finally published Section V. of Report of the Visa Office 2015, so we now have figures by country for all EB-5 visas issued in FY2015. (Last December I reported numbers from Section VI of the report, which only reflects EB-5 visas issued at consulates.) Here is my updated summary table.
2015visastats
DOS issued over 10,000 EB-5 visas in 2014, and fewer than 10,000 in 2015. China continues to dominate the list of countries, but with a smaller percentage of total visas in 2015 than 2014. Vietnam topped the list of countries claiming an increased number of visas in 2015, while China, South Korea, and Mexico showed significant decrease between 2014 and 2015. It’s interesting to note the number of visas issued to applicants from islands (including British and French territories) and wonder how many of these may be for applicants originally from more difficult countries who got intermediate citizenship. In terms of use, visas for regional center investments (98.4% of total) and TEA investments (99.2% of total) were even more dominant in 2015 than 2014. I assume that visa numbers for 2015 mainly reflect investments made in 2012-2014 (considering processing and wait times) by about 4,440 investors (assuming average 2.2 visas per investor). FYI here is my post with summary table for the 2014 Visa Office report. And note that IIUSA has a handy Investor Origin Map showing EB-5 investments by country.

Regional Center List Updates

Changes to the USCIS Regional Center List, 2/10/2016 to 03/01/2016

New Approvals:

  • EB-5 Bonds Texas-Oklahoma, LLC (Oklahoma, Texas)
  • Future Resources, Inc. (California): fureinc.com
  • Index Regional Center, LLC (Florida)
  • Rainier Valley RC LLC (Washington)

Name Changes:

  • Florida First Regional Center, LLC (former name USEGF Florida Regional Center) (Florida)

Terminations:

  • Luca Energy Fund Regional Center (Louisiana, Texas): Terminated 2/2/2016
  • U.S. Investment Regional Center, LLC (Arizona): Terminated 2/22/2016

EB-5 Timing Issues: Not a Fast Track

May 2017 Update: I’m demoting my original post from January 2016 to an attachment, as people keep consulting the post but all the numbers I used to try calculating timing have changed significantly since then. It’s hard to answer the question “how long will the EB-5 process take.” It depends on where the investor was born, when the investor filed I-526 relative to filing surges, how many petitions and applications get denied or abandoned, how processing times change, how demand changes, and whether Congress agrees to make changes to visa numbers or allocations or the filing process. The bad news, in short, is that the sheer number of people already in line for an EB-5 visa, plus the annual visa quota and per-country limitation, currently means that new China-born investors could be waiting a decade just to get a visa number for conditional permanent residence. Just a few years ago, companies could think in terms of a 5-year exit strategy to comfortably cover EB-5 investors through I-829 approval, but that could look more like 15-year exit strategies in today’s bad-case scenario. But the bad case won’t be reality for everyone — or maybe no one, if legislative proposals are enacted. Or the bad case could get even worse (as it did since I first wrote this post in October 2016, when the visa backlog looked about six years long), if surges in I-526 petition filing continue without other changes. Here is a spreadsheet with my ongoing attempt to calculate the backlog effect. Note that this simplistic approach does not model the influence of filing surges that create different time horizons for investors from different periods. And of course, it doesn’t reflect the fact that new legislation could change the picture entirely. For background on visa timing — the main wild card in the EB-5 process — see Robert Divine’s article The Realities and Implications of Chinese EB-5 Investors’ Wait for Visa Numbers (January 4, 2016).

Stages in the EB-5 Process

STAGE CONSIDERATIONS ESTIMATED DURATION
 (A)  Planning, paperwork, investment Must commit investment and meet other requirements before filing I-526
 (B)   File I-526, receive priority date, and wait for USCIS to process I-526 petition Can’t make material changes to the petition or depart materially from the business plan during this period In 2015-2016, average processing time ranged 13-17 months (USCIS target is < 6 months)
 (C)  Receive I-526 approval, wait for visa interview or I-485 status adjustment (may include waiting for visa number) Can’t make material changes to the petition or depart materially from the business plan during this period From a few months to about 10 years from I-526 filing, if waiting for a visa number (variable depending on whether China-born, where in queue, and whether visa numbers or allocation change). This spreadsheet has the quantitative factors that I know of.
 (D)  Receive green card; begin two-year conditional permanent residence period Investment must be sustained and at risk; job creation must occur; material change may be ok 24 months exactly (file I-829 after Month 21)
 (E)   Wait for USCIS to process I-829 petition For petitions processed in 2015-2016, average ranged 12-29 months
 (F)  Receive I-829 approval and conditional permanent residence No longer subject to EB-5 program requirements

Notes on EB-5 Stages

  • Investment and Escrow: During Stage (A), the EB-5 investor’s full investment must be committed to the enterprise (in the enterprise account, escrowed, or otherwise contractually committed). If escrow is used, investor funds must be released to the enterprise at latest before (D) begins.
  • Sustaining Investment: The investment must be sustained from (B) through (D) and must be actively deployed in job-creating activities at least during (D). USCIS is drafting new policy to address how exactly funds need to be deployed during (D), but has not finalized it yet. (In the meantime, the industry has tried to figure out reasonable redeployment policies.) The EB-5 investor may not recoup or draw down his investment before (E) and may be wisest to wait until (F) to exit.
  • Material Change: The deal needs to be planned and structured carefully during (A), as the petitioner will have limited opportunity to fix any deficiencies after filing I-526. The EB-5-funded enterprise must closely follow the I-526 business plan at least during (B) and (C), when material changes are not permissible.  USCIS allows some flexibility to depart from the business plan during (D). (See also my post on what material change means.) Note that proposed regulations and proposed legislation both offer to relax the material change policy and protect priority dates in light of long waits.
  • Job Creation: The investor can claim job creation that occurs from (B) to (D), and following his investment in (A). Under limited circumstances, he can also claim jobs created before the date of his investment or after the date that he filed I-829. In principle, he should be able to claim jobs that no longer exist when he files I-829 provided that the jobs were created and sustained for more than two years.
  • Planning Horizon: USCIS policy requires the I-526 business plan to show that jobs can be created within 2.5 years of I-526 approval.  However, businesses and investors should keep in mind that investors might not actually be verifying job creation until a decade after I-526 approval, considering the visa backlog and retrogression effect for EB-5 investors, not to mention processing times. EB-5 investment must be sustained throughout the conditional residence period (D), so premature exits must be avoided and exit strategies should consider realistic timing. Five years used to be a standard target for investor exit, but can be dangerously early for the average investor today.

Potential changes that would affect the EB-5 process and wait times

  • Increase the EB-5 visa quota: I list this because it’s the most obvious/simplest solution for the current dire picture, but I’m told that it is a political impossibility. Increasing the EB-5 visa quota would require increasing the total US visas and/or reorganizing how the total visa pie gets divided among different types. That would require comprehensive immigration reform — something that’s not on the table at all now and not expected any time soon.
  • Increase EB-5 visa availability by counting investors only toward the EB-5 quota, not spouses and children. This is a live possibility, included in several versions of EB-5 reform legislation and suggested to DHS for revised regulation (see p. 22-29 of the EB5-IC comment). And indeed, there’s a good argument for this being the original intent of Congressional representatives who designed the EB-5 program. If about 10,000 investors can get visas per year, then about 30,000 people can get cleared from the backlog per year (average 3 visas per investor), and wait times would shorten dramatically. Currently, just over 3,000 investors get visas per year, with family members taking the remainder of EB-5 visas.
  • Increase EB-5 visa availability by allowing EB-5 to recapture unused visas (see p. 22-29 of the EB5-IC comment)
  • Lighten the burden on China-born EB-5 investors by removing the per-country cap for visas. This has been suggested by a couple recent bills. It wouldn’t speed up the visa queue overall, but would mean that China-born investors don’t get held back by retrogression, and other investors don’t get to jump ahead i.e. would share/mitigate the long wait.
  • Use visa set-asides to incentivize Targeted Employment Area investment. This has been proposed in several EB-5 reform bills, and would shorten the visa wait time for new TEA investors while pushing other investors even further back in line. However, it’s likely that most set-aside visas would shortly return to the general pool (since the reform bills make TEA status difficult to achieve and the set-asides temporary) and thus the impact could be limited.
  • Change the filing stages: Several legislative proposals suggest allowing investors to file I-829 after having sustained investment and job creation for at least 24 months, even if they are still waiting for a visa number. In this way, when they finally receive the green card, it can be permanent rather than conditional permanent residence (skipping Step D in the table above). Several EB-5 bills have also proposed to allow concurrent filing of I-526 and I-485.
  • Mitigate the negative impact of long waits by adding more flexibility to the material change policy: Several legislative proposals and revised regulations provide more options and recourse for investors in case of material change, recognizing that such changes are inevitable over the course of years.
  • Mitigate the negative impact of long waits by adding protection for children who would otherwise age out: Several legislative proposals offer to do this.
  • Improve petition processing times: IPO continues to reaffirm its commitment to bring down processing times through staffing and efficiencies. I-829 petition times in particular should see improvement soon, as IPO has launched a new team devoted to I-829 adjudication.

2015 Visa Statistics, RC Termination, SEC Action, New RCs

2015 EB-5 Visa Statistics

Update: The corrected summary data table can be found in my 3/7/2016 post 2015 Visa Statistics by Country.

Other Items of Note

  • SEC Action on Attorneys: We’ve known for months that the SEC has been pursuing a crack-down on unlicensed persons acting as unregistered brokers, and specifically: immigration attorneys who take compensation for selling EB-5 investors on projects, despite lacking qualifications and licensure to give investment advice. Here is a copy of the SEC’s detailed complaint against one law office: SEC v. Hui Feng and Law Offices of Feng & Associates P.C. This 7/12/2015 article in Mondo Visione lists seven other individuals and firms who have also settled enforcement actions with the SEC, and links to copies of the Cease and Desist order for each. Honestly, I feared to see a lot more names on this list, but perhaps the SEC is starting with a warning shot and giving time for others to get their affairs in order. The detailed Feng complaint is good reading for anyone who receives or pays commissions for selling EB-5 investments, as the SEC goes into detail about what exactly was wrong and why it was wrong in the Feng case.
  • Regional Center Termination: One of the Regional Centers terminated in 2015 was brave enough to fight back, and now we can read about its case in the Administrative Appeals Office decision Matter of K-R-C, LLC, dated November 17, 2015. AAO dismissed the appeal, as nearly always happens, but it’s interesting to see what kind of evidence USCIS considered significant, the issues judged to be problematic, and the timeline of USCIS’s interactions with the Regional Center. A moral of this denial, as with so many other cases anatomized by the AAO, is the overwhelming importance of clear and clean paperwork. The case focuses on little things like how expenditures were coded on this or that document and how statements were worded on this or that filing and whether the proper reports were made at the proper time. This denial decision doesn’t go so far as trying to prove problems with the business itself, but terminates the RC based on issues apparent in the paperwork describing the business. Spend good money on your secretaries and bookkeepers and document preparers, because their humble work pushing papers and keeping numbers in order and documents in line could prove essential.
  • I-829 Approvals and Denials: I don’t expect anyone besides Mr. Whalen to click on this link, but FYI a very heavily redacted file titled I-829 RFEs, denials and approvals for NY and FL during 2009-2010 has appeared in the USCIS FOIA Reading Room in the Employment Based Petitions category. Connoisseurs may be interested in reviewing the I-829 RFE template used in 2009-2010 and seeing which lawyers were filing I-829 back then.
  • Legislative Update: Whatever I hear, I add to the first paragraph of my previous post.

New Regional Centers
Additions to the USCIS Regional Center List, 12/03/2015 to 12/08/2015

  • LCR Atlantic Gulf Regional Center (Florida, Georgia) www.lcrcapital.com
  • Southern California EB-5 Regional Center, LLC (California)

FY2015 I-526 and I-829 Statistics

USCIS has published Q4 2015 processing data for I-526 and I-829 petitions on its Immigration and Citizenship Data page.
I’m copying below charts that I made from the data. For those who prefer words, here are a few points that I notice.

  • I-526: FY2015 saw a huge number of I-526 filings – over 14,000 receipts (with 46% filed in the fourth quarter in a surge prior to possible program changes). Assuming that only about 10,000 EB-5 visas can be issued in a year, and an average of 2.2 visas per investor I-526, then this year’s receipts alone will take up over three years-worth of available EB-5 visas. FY2015 ended with over 17,000 petitions pending, which would take up nearly four years of available EB-5 visas. USCIS has shown impressive year-on-year improvements in the number of I-526 petitions processed, up 32% in 2014 and 42% in 2015. USCIS even briefly caught up to the number of receipts in Q3 2015, but then got snowed under again with the blizzard of filings in Q4 2015.
  • I-829: A similar volume of I-829 petitions were filed in 2014 and 2015, but with very different distributions over the year (an increasing number of receipts by quarter in 2014 and decreasing number by quarter in 2015). Overall FY2015 had 10% fewer receipts than the previous year, but I don’t know whether to call a puzzling trend or just note seasonality. The IPO office at USCIS, which took over I-829 processing at the end of 2014, got a slow start but picked up speed and managed to process 467 I-829 petitions in Q4 2015. In all IPO processed over a thousand I-829s in FY2015, but ended the year with a backlog of over four thousand petitions. We hope that IPO picks up the pace so that the I-829 backlog alone doesn’t take four years to process.


And because it’s topical, though I doubt the significance of these averages, here’s a chart with the latest update to IPO processing times.
IPOtimes

2015 Q3 Petition Processing

Because we’d all like to see some upward-trending lines for a change today, here are charts showing EB-5 petition processing statistics for the first three quarters of FY2015. The third quarter stats are not official yet, but I calculated them from numbers verbally reported by IPO Chief Nicholas Colucci at last week’s stakeholder engagement. (UPDATE: now they are official, and posted here by USCIS  here.) The improvement in I-526 processing volume is particularly significant and heartening.
Q32015I526 Q32015I829

We also learned from Mr. Colucci that I-924 submissions have spiked, with 252 receipts since the beginning of the fiscal year and about 55 filed in July alone.

The Q&A portion of the teleconference provided some interesting insights into the huge variation we see in processing times, with some approvals coming through in weeks and others dragging on for years. Julia Harrison admitted that a bunch of 2012 and 2013 cases had gotten out of order for various reasons, particularly in connection with the moves from the California Service Center and then between facilities in Washington D.C., and that USCIS was now prioritizing older cases that had fallen through the cracks. USCIS confirmed that they do have separate workflows for RC and non-RC cases, and that the direct EB-5 workflow has gotten much slower. This contradicts a rumor I’ve heard promoted that direct cases can expect faster processing than RC cases, but USCIS stated that they’re working hard to bridge the gap between the RC and direct workflows.
The chart of IPO processing times is not so pretty (and also not very informative, considering that the standard deviation seems to be 12 months), but here it is (based on times posted here).
IPOtimes

NYU article, 2015 Q2 Processing Stats, May 5 AAO Killer, New RCs

NYU Article
We now have a final version of the paper “A Roadmap to the Use of EB-5 Capital: An Alternative Financing Tool for Commercial Real Estate Projects” (May 22, 2015) by Professor Jeanne Calderon, Esq. and Guest Lecturer Gary Friedland, Esq. of the NYU Stern School of Business. For real estate developers considering EB-5, this paper is valuable for the database of examples alone, not to mention 70 pages that carefully explain how the program can work for real estate projects. The authors tell me that their project database with ongoing updates will be posted on the NYU Stern School of Business site.

2015 Q2 Processing Stats
USCIS has finally posted official EB-5 petition processing stats for Q2 2015. It’s wonderful to see that IPO is getting up to speed on I-829 processing while also increasing I-526 volumes. Meanwhile, note that volume of petition receipts has fallen each quarter this year.

2015 AAO Decisions on I-526 Cases
So far USCIS has posted four 2015 AAO decisions on appeals of denied I-526 petitions, including three sleepers and a bombshell. APR012015_01B7203 briefly remands the appeal to IPO in light of a court settlement, APR032015_01B7203 comes to an apparently reasonable conclusion that the business plan was not credible and waxes for several pages on “material misrepresentations” and their consequences, MAY082015_01B7203 dissects source of funds problems, and MAY052015_01B7203 pursues a blindly doctrinaire line on the requirement that “the petitioner must demonstrate eligibility for the visa petition at the time of filing.” In the MAY052015_01B7203 case, the offering memorandum filed with the original I-526 had a sentence that USCIS judged an impermissible redemption agreement. All investors signed and submitted an Agreement of Waiver to remove that sentence, and USCIS/the AAO didn’t dispute that the OM+waiver was now compliant but said that the petition still needed to be denied because the waiver post-dated I-526 filing and therefore the petitioner wasn’t technically eligible at the time of filing. This point is fair to the letter of the law, but one wonders, why decide to pound this technicality?  The petitioner did not include evidence of non-EB-5 capital commitments in the first petition filed in 2012, but duly provided the evidence when USCIS got around to requesting it in 2013. But USCIS/the AAO declined to credit the commitment letters provided in part because they post-dated the original I-526 filing. If this standard were applied fairly to all EB-5 cases – if no petitioner could file unless all other funding had been documented as raised before he filed – then multiple-EB-5 investor deals (most of the EB-5 program) would become next to impossible. Further, EB-5 would be limited to the projects that can and are willing to get all the conventional funding they need in the bank one to two years before they can hope to receive EB-5 investment (considering USCIS’s long I-526 processing times, and the common use of EB-5 escrows contingent upon I-526 approvals). In other words, EB-5 would be limited to projects that don’t need EB-5; that can take out their bank loans and go to work right away before investors even file I-526 and regardless of what happens with the I-526 petitions. The AAO decision hammers this point even further in the section that tries to apply the standard that “simply formulating an idea for future business activity, without taking any meaningful concrete action, is similarly insufficient for a petitioner to meet the at-risk requirement.” Specifically, the AAO/USCIS decided that the petitioner had not placed the required amount of capital at risk in part because the contractors who had been engaged to build the subject assisted living facility had not actually started work before the investor filed I-526. Naturally the petitioner needs to show more than a general idea for a future business, but this decision seems arbitrary and unreasonable in its application of the requirement. The business owner says “yes, here are the meaningful concrete actions we have taken” and the AAO lawyer says “no, I don’t think those qualify as a meaningful concrete action; you should’ve gone further” – what is this but an arbitrary judgment made by someone with no clear metric and no claim to qualification to assess the stages in establishing various types of business? And where is the acknowledgement of the one to two-year spanner that USCIS review puts into any development plan? And what would this mean, if applied fairly to all? Again, EB-5 would be limited to 1) projects that don’t actually need EB-5 investment, since they would be required to fully mature prior to/without it; and/or 2) investors who don’t really care about the EB-5 visa, such that they can develop projects well in advance of and independent of the fate of their EB-5 petitions. I think I’m upset about this case partly because it appears to involve the kind of business that many people would like the EB-5 program to support. EB-5 petitioners were providing about half of the capital needed to fund small assisted living facilities in Texas – a business that looks like it could have provided jobs in areas of genuine need and might not have gone forward without the EB-5 investment. Why press interpretations of the regulations that knock out this kind of investment, while further privileging deals that just use EB-5 to take out a few million of existing financing for some multimillion building project that was going ahead anyway? Someone is not thinking very carefully.

New Regional Centers
Additions to the USCIS Regional Center List, 5/21/2015 to 6/1/2015

  • U.S. Investment Regional Center, LLC (Arizona): usirceb5.com
  • Alexico Los Angeles Regional Center, LLC (California)
  • California Blue Sky Regional Center, LLC (California): Designation Letter
  • California Investment Regional Center, LLC (California): www.eb5-circ.com
  • Economic Development & Investment Group LLLP (California)
  • Gateway California Regional Center (California): www.gatewayeb5.com
  • Western Pacific Regional Center, LLC (California, Oregon, Washington)
  • USEGF Florida Regional Center (Florida)
  • Advantage America Hawaii Regional Center, LLC (Hawaii): www.aaeb5.com
  • GO USA EB-5 Regional Center, LLC (Illinois): www.gousaeb5.com
  • American Regional Center-Las Vegas, LLC (Nevada)
  • Century New York City Regional Center (New York): www.centurynyceb5.com
  • Land of Sky Regional Center, LLC (North Carolina, Tennessee): www.landofskyregionalcenter.com
  • Ohio Lakeside Regional Investment Center (Ohio): www.uslakesideeb5.com
  • The Lawrence Economic Development Corporation (Ohio): www.lawrencecountyohio.org
  • JMIR Texas Mega Metro Regional Center, LLC (Texas)
  • Washington Foreign Investment Management Group, LLC (Washington): www.eb5wfimg.com

Q1 2015 EB-5 processing statistics

Newly-released processing time information for the Investor Program Office shows slight increases over the previous quarter to average processing times for all EB-5 petitions and applications.
IPO22015
Data Source: USCIS Processing Time Information

The big story behind these numbers comes in the statistics on processing volume for the end of 2014 (USCIS’s Q1 2015), which shows a number of surprising trends: 1) the first fall I can remember in the number of I-526 petitions received; 2) a sizable increase in the number of I-526 petitions processed; 3) a near stand-still in I-829 adjudication. The California Service Center got 690 I-829 petitions out the door in the previous quarter, before the hand-off to IPO, and IPO has processed only 69 I-829s since taking over the task. I hope that future processing reports will show IPO getting up to speed with I-829 and able to handle the growing backlog of petitions (3,080 of them as of 12/31/2014).
I-526Q12015I-829Q12015
Data Source: USCIS Immigration and Citizenship Data

1/12 IPO Processing Update, Terminated RCs

Today USCIS updated processing time information for the Immigrant Investor Program Office. Average I-526 processing times took a modest but welcome dip, while average I-829 and I-924 processing times continue to climb.
IPO11202014
USCIS has still not restored the Regional Center program information page to its website, but it has added a new page titled Terminated Regional Centers. The page emphasizes USCIS power to revoke Regional Center designation and gives a walk of shame for Regional Centers that have lost designation, for reasons that may range from missing paperwork to misconduct. Blameless Regional Centers simply choosing to disband should seek to do so in a way that avoids being publicly listed together with the few RCs terminated for cause.

FY2014 EB-5 Visa Stats by Country

The US Department of State has updated its Report of the Visa Office 2014 with the section on EB-5 visas issued: Section V Immigrant Visas Issued and Adjustments of Status Subject to Numerical Limitations (by Foreign State of Chargeability): Fiscal Year 2014, Part 3 (Employment Fifth and Totals, Grand Totals). I’m copying below my summary table, which lists all countries associated in FY 2014 with 20+ EB-5 visas. People wondering about trends in demand for EB-5 visas should study the full file carefully. They may also compare with visa office reports from previous years.
FY2014visas
PS: Keep in mind that visas are not the same as petitions. I-526 petitions are one per investor and filed with USCIS, which adjudicates them and publishes its own statistics. EB-5 visas are one per investor plus his/her spouse and minor children, and are issued by the State Department after a process that follows I-526 approval.

2014 I-526/I-829 Processing Stats, SEC Enforcement, New RCs (AL, CA, FL, IL, IN, NY, OH, OR, TX)

Processing Statistics
USCIS has updated its Immigration and Citizenship Data page with fourth quarter FY2014 processing statistics for Form I-526 and Form I-829.The numbers show dramatic increases in the number of petitions filed and the number processed. USCIS received twice as many I-829 petitions this year as last, and also processed twice as many. USCIS increased its I-526 processing volume as well, but not enough to keep up with receipts which exceeded 10,000 this year and pushed the volume of pending petitions over 12,000. That soaring line of I-526 receipts is sobering, considering that each represents an investor and only about 10,000 EB-5 visas are available annually for investors plus their spouses and dependents. (The State Department issued 9,228 EB-5 visas in FY2014, and China-born investors face a high probability of EB-5 quota retrogression in 2015.) On the bright side, 1,603 investors removed conditions this year, representing millions of dollars successfully invested and thousands of new jobs successfully verified. The image below shows summary charts from my Excel file of the data, based on files from the USCIS page linked above.
FY2014stats

SEC Compliance
Chad Ellsworth of Fragomen, Del Rey, Bernsen & Loewy, LLP has an interesting article Emphasis on Compliance and SEC Interagency Cooperation a Year after the Appointment of Chief Nicholas Colucci to the USCIS Immigrant Investor Program (EB-5). The article summarizes the SEC’s recent EB-5-related activities and describes the content of broad subpoenas issued by the SEC to a number of Regional Centers.

Additions to the USCIS Regional Center List,11/4/2014 to 11/24/2014

  • Cornerstone Regional Center, Inc. (Alabama and Florida): www.cornerstoneregionalcenter.com
  • Golden Opportunity Regional Center (California)
  • Southern California Health and Hospitality Regional Center, LLC (California): www.eb5mg.com
  • American Advancement Capital Co. (California)
  • Success Dragon, LLC (California)
  • Clearwater Beach Resort Regional Center, LLC (Florida): www.eb5clearwaterbeach.com
  • Miami Regional Center, LLC (Florida)
  • Orlando Regional Center, LLC (Florida)
  • Crossroads Investment Partners, LLC (Illinois, Indiana, Ohio)
  • NYC Regional Center, Inc (New York)
  • American International Venture Fund – Oregon, LLC (Oregon)
  • PetroSam, LLC (Texas): petrosam.net

FAQ page, Retrogression, I-829, Processing Times, New RCs (CT, IL, IN, LA, NJ, NY, TX)

FAQ
I have started a new Frequently Asked Questions page that compiles official and unofficial USCIS answers to questions that affect business plans. So far I’ve linked in answers from USCIS policy guidance and stakeholder meetings, and I’ll be adding references to AAO decisions that treat sticky business plan questions.

Retrogression
Speaking at the IIUSA conference on October 23, Charles Oppenheim predicted that the EB-5 visa category will likely retrogress in July 2015. This remains a moving target, however. Ron Klasko’s blog has published a timely article on Surviving and Thriving in Times of EB-5 Quota Backlogs.

I-829
You may thank us at the IIUSA editorial committee for another great edition of the Regional Center Business Journal (October 2014). Three feature articles provide advice and analysis for I-829 petitions: The Latest Analysis of What USCIS Looks For in EB-5 I-829 RFEs and Denials, It’s Never Too Soon to Begin Preparing for I-829 Petition Filings, and Removal of Conditions for EB-5 Investors: Practical Guidance in Preparing I-829 Petitions.

Processing Times
The USCIS website has a sharp new look as of last week, but no new EB-5 content except a IPO processing times update. I-829 times are back to normal, while average I-526 and I-924 processing times continue to inch up.
IPO 930

IIUSA Conference
Mark your calendars for IIUSA’s 2015 EB-5 Regional Economic Development Advocacy Conference on April 12-14, 2015 in Washington, DC.

Additions to the USCIS Regional Center List, 10/20/2014 to 11/04/2014

  • EB5 Fund, Inc. (Connecticut, New Jersey, and New York)
  • Great Lakes Regional Center, LLC (Illinois, Indiana, and Wisconsin): www.glrceb-5.com
  • Southern Opportunity Regional Center LLC (Louisiana and Texas)
  • Premier Regional Center, LLC (Texas): www.premierregionalcenter.com

Processing Times and Volumes 2014 Q3

And now for images summarizing recent information on EB-5 petition processing times (from the USCIS Processing Time Information page, updated 8/7 for IPO), I-526 and I-829 petition volume (from the USCIS Immigration and Citizenship Data page, updated 8/19), and I-924 processing volume (my unofficial tally). The numbers show that EB-5 petition receipts still exceed the number of petitions processed every quarter, with that gap increasing for I-526 and holding steady for I-829. Denial rates were unusually low last quarter. Overall processing volume improved significantly for I-829 and fell again for I-526. Perhaps fortunately, since the 7,688 I-526 petitions received already in FY2014 would put us well over the annual EB-5 visa allocation if adjudicated in a timely manner.  Average processing times have not shown dramatic change over the past few months (except for when USCIS took I-924a out of the I-924 average between March and April). Meanwhile, the roster of approved Regional Centers continues to expand rapidly.
I526Q3 I829Q3
TimesQ3 RCapprovalsQ3
Click on any image to view the full size version.
And note my other new posts from today on business plans and the newly-announced 9/10 stakeholder meeting.