FY17 per-country I-526 data, SEC action (registration)

Per-Country I-526 Data
IIUSA has received another year of per-country data for I-526 filings through the Freedom of Information Act process, and prepared a report for IIUSA members. Being ambivalent about freedom of information, IIUSA has decided to share this much with the public.
The full FOIA data set for I-526 filings, approvals, and denials FY2016-FY2017 is being sold for $1,500 (discounted to $300 for IIUSA members).

People who seek EB-5 investors will be interested to note shifts in the top six countries for EB-5 demand. Data on I-526 filings gives a better demand indicator than visas issued, since visas are usually issued 2+ years after the investment.

Past Chinese investors will note with concern the rising number of I-526 filings from other countries that aren’t oversubscribed. But Chinese can also take heart that increased demand in FY16/17 was concentrated in two countries that have (Vietnam) or will (India) exceed their cap and receive a demand-dampening cut-off date since FY2017. Only applicants from undersubscribed countries with no cut-off date can advance ahead of Chinese in the visa waiting line.

Indians will appreciate the clue to future EB-5 visa demand and wait time. Table 1 shows that Indians filed 354+587=941 I-526 from FY16 to FY17. Let’s say 941 I-526 filed * 85% I-526 approval rate * 2.9 visas per I-526 approval = 2,320 visas demanded. (I’m using historical worldwide averages as variables for this estimate, though I guess Indian approval rates may be lower and family size higher than the China-dominated average.**) About 2,320 EB-5 visas demanded by Indians * 1 year/696 EB-5 visas available to India = about 3.3 years to issue the EB-5 visas demanded by India in FY16 and FY17. 3.3 years/2 years = 1.6 more demand than supply = backlog coming. Processing time information indicates that USCIS is only just now approving I-526 from 2016, so many of those I-526 filers haven’t reached the visas application stage yet. When they do, they’ll exceed the per-country cap and lead to a visa bulletin cut-off date for India. When that will happen depends on USCIS’s speed in adjudicating I-526. The length of the visa wait time will vary for people with different priority dates. If only we had FY2018 data as well! Charlie Oppenheim at Department of State probably has these numbers, and I look forward to hearing what he has to say at the AILA/IIUSA EB-5 Industry Forum in a few weeks. I also look forward to USCIS finally publishing FY2018 Q3 data for worldwide EB-5 petitions filings (which they’re very late in doing). Because good business decisions depend on information, I continue to update and share my spreadsheet of available data related to EB-5 visa availability.

**UPDATE: I’ve since realized that DOS publishes a report of Monthly Immigrant Visa Issuances that contradicts my assumption about family size. I logged the monthly reports of EB-5 visas issued to Indians and Vietnamese so far in FY2018 (See Tab 2 Column AS of my backlog spreadsheet), with this result:

• India: 347 EB-5 visas issued Oct 2017-August 2018, of which 130 were to principal applicants (average 2.67 visas per principal)
• Vietnam: 658 EB-5 visas issued Oct 2017-August 2018, of which 171 were to principal applicants (average 3.85 visas per principal)

SEC Action on Unregistered Sales of Securities
The SEC has set a gentle example to the EB-5 community in a recent enforcement action. The SEC targeted EB-5 giant CMB Export for violations of registration requirements and improper transaction-based compensation until 2015, and settled for $11.6 million in penalties (not much, considering the amount of investor funds involved) and compliments to CMB’s compliance efforts since 2015. In its press release, the SEC emphasizes the intended moral of the story: “All securities, including EB-5 securities, must comply with registration provisions, which are essential to protecting investors. In the EB-5 industry, strong compliance policies can help ensure that companies meet their registration obligations under the federal securities laws.” Other regional centers will be interested to read the SEC Order and consider their own past and future policies. Note that previous actions have made an issue of transaction-based compensation to unregistered broker-dealers, but this is the first SEC action to target offering partnership interests without first registering the offering, or having a valid exemption from registration.

I-526 and EB-5 visa wait times; country-specific effects of potential changes

I’ve written separately about I-526 processing time and the EB-5 visa wait time, but find that people get confused about how those times interact. How does I-526 processing time affect the total time to get an EB-5 visa? From what point do we calculate the visa wait? What factors and potential changes could compress or expand the full process from priority date to green card for people from different countries?  This post addresses such questions.

Note that the path to conditional permanent residence has two separate, sequential steps (Step 1 and Step 2 in Figure 1), but we usually calculate timing for each step from the same starting point (Time A and Time B in Figure 1).  An immigrant investor’s priority date – the date that USCIS received his I-526 petition – marks his place in line for I-526 processing (which is first-come-first-served in principle) and also his place in line for a visa. An investor must wait for I-526 approval before he can take the next step and submit a visa application or file for status adjustment.  But once he gets to the visa application stage (Step 2), his place in the queue for a visa doesn’t depend on the date he finished Step 1 (I-526 approval) but on the date he started Step 1 (I-526 receipt). This is so because anyone who files I-526 is effectively putting herself in the visa queue, even though she hasn’t progressed yet to the point of being qualified to file the visa application or I-485.  INA 203(e)(1) stipulates that available EB-5 visas are issued to eligible immigrants in the order in which the immigrant petition was filed. So when Charlie Oppenheim at the Department of State Office of Visa Controls estimates a two-year wait time for Country A, he is talking about two years from priority date to visa availability, not two years from I-526 approval.  To estimate wait times for new applicants today, it’s necessary count both chickens (documentarily-qualified applicants currently ready to file for a visa) and eggs (people who have filed I-526 petitions that may eventually hatch and yield visa applications). Therefore, with reference to Figure 1:

• For an investor of any nationality, Time B is, at minimum, longer than Time A, because an investor isn’t qualified to apply for a visa until after I-526 approval.
• For investors from countries without excessive demand, Time A can be the major factor determining the length of Time B. I-526 processing times have tended to be lengthy for all countries (averaging around 2 years). But once having received I-526 approval, the investor from a country with no cut-off date will have a visa number available right away and can progress straight to the visa application or status adjustment process to claim that visa. Only investors from countries over or near the annual per-country limit need to worry about waiting years for a visa number, making Time B very much longer than Time A.
• For an investor from a country exceeding the annual 7% per-country limit, Time A becomes relatively insignificant (personally) because Time B will be long regardless of the individual’s Time A. As a Chinese investor, I may not care about the timing of I-526 approval if  have a decade to wait for conditional permanent residence regardless. The visa queue is ordered by priority date, not date of I-526 approval, so an expedite in Time A doesn’t expedite Time B for investors from significantly oversubscribed countries.
• Because the visa waiting line technically starts with priority date, we have to look at I-526 receipts, not just I-526 approvals or current visa applications, to estimate Time B. Prospective Indian investors may wonder why there’s already an informal visa wait time estimate for Indians filing today, even though India shows as current in the Visa Bulletin. That’s because today’s Visa Bulletin just reflects what’s currently happening in Step 2. The prospective investor needs to predict how the Visa Bulletin will look in the future, when he can progress to Step 2. And that future Visa Bulletin will depend on what’s happening in Step 1 now, and the volume and nationality of people entering the system and receiving priority dates.

How long is Time B, for various countries? The latest rough estimates (as of April 2018) suggest the following time between priority date and visa availability for new investors from different countries filing today: China, 15 years; Vietnam, 6 years; India, 5 years; Brazil and South Korea (and maybe Taiwan), 2 years. (Update: see estimates as of October 2018 here.) Times for everyone else are just based on estimated petition processing times, assuming no wait for a visa number. (There’s a potentially significant time factor between visa availability and actually getting a conditional green card, depending on how busy the appropriate consulate or service center happens to be, but this time is so variable that I haven’t tried to account for it in my Time B calculation.)

Many factors could change the estimates for Time B, or cause the reality to be longer or shorter for people of various nationalities who have entered the EB-5 process.

Possible Change: USCIS improves I-526 processing, increasing volume of adjudications and reducing I-526 processing times.

• Likelihood of this change: High. IPO processed 30% more I-526 in FY2017 than FY2016, and hopes to continue to improve performance
• Impact of this change, if it occurs:
  • China: Negative effect. More approved I-526 means more approvals for countries other than China, which means more visa applications from outside China and fewer leftover visas available to the China backlog. Fewer leftover visas annually means longer Time B for Chinese investors.
  • Vietnam, India, Brazil, S. Korea, Taiwan: Mixed effect. These countries are or will be too new in the backlogged category to compete for leftover visas in any case (since China has enough older backlogged applicants to claim all leftover visas for years). An increased volume of rest-of-the-world applicants may not hurt countries that can’t expect more than their personal allotment of 700 visas a year regardless. However, more and faster I-526 approvals could mean that India, Brazil, and possibly South Korea and Taiwan get cut-off dates sooner than expected. (Charlie Oppenheim knows that they’re already probably oversubscribed, based on counting eggs, but he doesn’t set cut-off dates until the eggs actually hatch into chickens, i.e. until immigrant investor petitioners are documentarily qualified to apply for a visa.)
  • Rest of the world (any countries well below 250 investors per year): Positive effect. So long as a country doesn’t risk generating over 700 visa applications in a year, its investors can only benefit from improved I-526 processing time/volume. With no hold-up to wait for a visa number, short Time A means short Time B.

Possible Change: Legislation removes the per-country numerical limit for the EB-5 category, such that individual countries aren’t limited to 7% of EB-5 visas when the category is oversubscribed.

• Likelihood of this change: Possible. Border Security and Immigration Reform Act of 2018 (H.R. 6136), the compromise immigration legislation just introduced by House GOP leadership, proposes this change in Sec. 2102 (page 192).
• Impact of this change, if it occurs:
  • China: Positive effect. With no per-country limit, the visa waiting line would simply be in order by priority date. Having been held back with cut-off dates for years, Chinese applicants have the oldest priority dates in the system. Thus, with no per-country limit, the huge pool of backlogged China-born investors would move to the front of the line for visas. Based on the number of old Chinese applications in the system, they could take 100% of available visas for the next 2-3 years, and be on equal footing with contemporary applicants from other countries thereafter. Time B for a China-born investor with priority date from 2014-2016 would decrease dramatically. Time B still wouldn’t be short for a China-born investor filing today (about 9+ years unless many previous applicants drop out, as they might), but that’s much better than the current estimate of about 15 years.
  • Vietnam, and any soon-to-be oversubscribed countries (India, Brazil, etc.): Negative effect. The per-country limit means that each backlogged country can expect to get at least about 700 visas annually. Without the per-country limit, all more recent applicants would find themselves in line behind tens of thousands of China-born applicants with earlier priority dates. Time B (currently estimated at 5+ years for new investors from Vietnam/India and 2+ years for Brazil/South Korea) would likely expand to 9+ years for all new investors regardless of country, in absence of per-country limits.
  • Rest of the world: Negative effect. The per-country limit currently protects low-volume countries from the effects of excess demand for EB-5 visas. Even with a decade of current/potential visa applications already in the system, new applicants from low-volume countries can expect a visa promptly because high-volume countries get held back. With no country-specific limits, new investors would join a line that’s about a decade long without regard to nationality.

 Possible Change: Legislation increases the number of EB-5 visas available annually.

• Likelihood of this change: Possible. We need this change so badly, and advocacy dollars should focus on this issue. But I haven’t seen EB-5 visa number increases in any recent legislative proposals – not even in H.R. 6136, which proposes additional visa numbers for every EB category except EB-5.
• Impact of this change, if it occurs: Positive for all past and future EB-5 investors from all countries.

Possible Change: Legislation or regulations implement higher minimum investment amounts that significantly depress new demand for EB-5. (Or other factors significantly depress new demand: e.g. investors in potentially-high-volume countries get discouraged by wait times, the U.S. becomes a less attractive destination for immigration or investment, EB-5 becomes a less attractive financing option for U.S. companies.)

• Likelihood of this change: High. All legislative and regulatory proposals include higher investment amounts. The most imminent proposal – regulations possibly on schedule to be finalized in August 2018 – have investment amounts high enough to kill demand almost entirely, many EB-5 promoters say. Even if investment amounts do not increase, or increase only moderately, EB-5 has plenty of challenges and complications with potential to moderate future demand.
• Impact of this change, if it occurs:
  • China: Positive effect. Fewer incoming immigrant investors means less competition from rest-of-the-world for available visa numbers
  • Vietnam, and any other high-demand countries: Positive effect. Reduced demand reduces risk for investors already in the system that their countries will become or stay oversubscribed.
  • Rest of the world: Neutral. Low future demand does not improve wait times for people already in the system from countries with no cut-off date.

Possible Change: Demand for EB-5 grows, and countries besides China produce a sufficiently high volume of EB-5 petitions to exceed the per-country limit.

• Likelihood of this change: Fairly high. The Department of State already predicts cut-off dates in the next couple years for five to six countries in addition to China. And media reports indicate aggressive EB-5 promotion outside of China, particularly in India and Brazil.
• Impact of this change, if it occurs:
  • China: Positive effect. Time B for China-born applicants depends primarily on the number of visas leftover each year from the “rest of the world” with no cut-off date. As soon as another country exceeds the per-country limit and gets a cut-off date, it’s removed from and reduces the size of that “rest of the world” pool, thus leaving more visas on the table for older China-born applicants.
  • Vietnam, and any other countries to be oversubscribed: Negative effect. Time B expands dramatically for a country as soon as it’s oversubscribed. Vietnam and subsequent countries don’t benefit the way China does from each additional country to get a cut-off date, because these countries don’t have applicants old enough to compete with China for visas leftover from the rest of the world.
  • Rest of the world: Positive effect. Each additional country to get a cut-off date reduces competition for available visa numbers.

Possible Change: Demand for EB-5 diversifies, with more investors coming from outside China, but spread out so that few individual countries exceed the per-country limit.

• Likelihood of this change: Moderate. It’s much easier to raise a lot of EB-5 money from one country than from many countries, so concentration has been the rule to date in EB-5. But data has suggested a trend toward diversification.
• Impact of this change, if it occurs:
  • China: Negative effect. Time B for China-born applicants depends primarily on the number of visas leftover each year from the “rest of the world” with no cut-off date. As that “rest of the world” pool grows, visa availability for China shrinks, and wait times grow.
  • Vietnam, and any other countries to be oversubscribed: Neutral effect. They aren’t competing for “rest of the world” visas anyway, thanks to China’s earlier priority dates.
  • Rest of the world: Negative effect. Each new applicant with no cut-off date increases competition for available visa numbers.

Possible Change: People already in line for an EB-5 visa despair about Time B and withdraw in large numbers from the EB-5 process. (Or other attrition factors come into play: more petitions get denied, more projects fail, more deaths and divorces occur, children age out or don’t get born.)

• Likelihood of this change: Moderate. On the one hand, current wait time estimates are devastating for some investors (especially, China-born investors in the past couple years), undermining their immigration objectives and their investment projects. This could precipitate voluntary withdrawal, not to mention attrition from children growing up and more time for divorce and death and project failure. On the other hand, EB-5 investments are major and real at-risk investments, committed regardless of the immigration process. Giving up is not easy. Also, many people do not read my blog and are not well-informed about timing issues.
• Impact of this change, if it occurs:
  • China: Positive effect for some. Each China-born applicant who withdraws from the process reduces the time that more recent China-born applicants have to wait for a visa.
  • Vietnam, and any other countries to be oversubscribed: Mixed effect. Mass exodus of past investors would reduce competition for available visas, but also involve collateral damage to the EB-5 program as a whole (in terms of public relations and damage to companies deploying EB-5 investment, not to mention the human cost for the prospective immigrants involved).
  • Rest of the world: Mixed effect. Countries without cut-off dates do not compete with the backlog anyway, so reducing the backlog has little effect on timing for these countries. But large-scale failure of previous EB-5 applications would damage the EB-5 program as a whole.

Other related posts:
AILA/IIUSA Forum Updates (Kendall, Oppenheim, visa availability) November 5, 2018
Visa Numbers (FY2018 Q3 and conference update) July 27, 2018
How Long Does I-526 Take? (III) May 18, 2018
Visa Numbers (China, Vietnam, India, Brazil, S. Korea, Taiwan) April 23, 2018
EB-5 Visa Waiting Line and Visa Allocation April 8, 2018
EB-5 Timing Issues and Visa Wait: Process and Data October 13, 2017

Benefit from this blog? Please support the effort behind it. As the EB-5 industry changes, your contribution can help preserve this space for conscientious and freely-available EB-5 reporting. Contributions go to Lucid Professional Writing, a for-profit business, to fund work on this blog. Thank you!

How Long Does I-526 Take? (III)

2020 UPDATE: I-526 timing factors have changed since this post was published in May 2018. For updates, please see:

• Interpreting Processing Times Reports (6/2/2020)
• Report from 3/13 USCIS Engagement on Visa Availability Approach (3/13/2020)

— Original Post —

This post combines, updates, and replaces my two previous posts on I-526 processing times. I’ve divided the post into six sections:

• Interpreting Official USCIS Processing Time Information
• Predicting Average Processing Times
• Understanding Variation in Processing Times
• Expedited Processing
• Individual Processing Time Experience
• Resources for Investors

How much time does USCIS take to process an I-526 petition? The short answer: usually between 3 and 33 months. The rest of this post provides the long answer.

Interpreting Official USCIS Processing Time Information

USCIS addresses the processing time question on the EB-5 filing tips page:

How long does USCIS take to process a Form I-526 petition?
For current estimates, see USCIS Processing Time Information. However, processing times can vary depending on the circumstances of each case. These include factors such as the time it takes to complete a background check and whether we need to request additional evidence.

Since, March 23, 2018, the USCIS Processing Time Information page for I-526 has looked like this:

The report claims that “We generally process cases in the order we receive them,” and provides two pieces of information: an estimated time range, and a case inquiry date.

• What “Estimated time range” means:  This month range gives a theoretical average processing time and an upper limit. The lower number (25 months) is an average that’s calculated by dividing the number of I-526 petitions pending at IPO by the average number of petitions that IPO has been processing in a month. The higher number (32.5 months) is “generally” the lower number multiplied by 1.3. Cases that take longer than 32.5 months to process have exceeded an arbitrary “upper limit” for “normal” processing times, and considered outliers. The month range provides a reasonable theoretical estimate for I-526 processing times. However, we have no evidence that the dates broadly reflect the actual ages of cases currently being adjudicated at IPO. Quite the contrary, in fact, as discussed below. (Source of my interpretation: USCIS’s More Info page, which says that we “continue to use our old method to calculate processing times” for non-pilot forms such as I-526, combined with an Office of Inspector General report exposing the “old method” for calculating processing times in the I-485 context, and corroborated by reproducing USCIS’s presumed time range calculation using public data on I-526 pending petitions and volume of adjudications.)From March 23, 2018 to May 18, 2018, the Processing Time Information Report Estimated Time Range for I-526 has remained unchanged: 25 to 32.5 months. Since the Estimated Time Range appears to be a broad theoretical calculation, not dependent on fluctuating reality, I expect it to remain unchanged in the report indefinitely, regardless of what’s happening on the ground at IPO. [Update: on 5/31/2018, the report was updated to show 20-25.5 month range for I-526.]
• What “Case inquiry date” means: As the Processing Time Information page explains,
  

  We have posted a Case Inquiry Date … to show when you can inquire about your case. If your receipt date is before the Case Inquiry Date, you can submit an “outside normal processing time” service request online.

  From March 23, 2018 to May 18, 2018, the Case Inquiry Date for I-526 has remained constant: today’s date minus 971 days. (I spot check the webpage periodically, and log the reports in my IPO Times file.) The webpage claims that the report gets updated “around the 15^th of each month,” but that has not been true yet.

  Like the Estimated Time Range, the Case Inquiry Date appears to be merely theoretical and functional. It’s more-or-less simply the upper end of the Estimated Time Range, converted from a month into a calendar date. It does not claim to be the date of cases that IPO is processing now. It’s just the cut-off date that IPO has set for complaints – and naturally IPO would choose to put that date back as far as possible. If you want to estimate when you may start to complain, add 971 days to your priority date. But your I-526 will get a decision before that date, unless it’s an outlier. And I predict that variable currently set at 971 will be adjusted downward eventually, assuming that IPO continues to improve processing speed. [Update: on 5/31/2018, the report was updated to show I-526 case inquiry date of 761 days ago, rather than 971 days ago]

Predicting Average Processing Times

Average processing time is theoretically a function of inventory (number of pending petitions) and flow rate (rate at which IPO approves and denies petitions). You can get the input data for this equation from the USCIS Immigration and Citizenship Data page, which posts quarterly reports for I-526 and other forms. My I-526 Time spreadsheet turns the quarterly data into a prediction model that estimates average processing times as a function of petition volume at different points in time (with some assumptions about future trends). The last quarterly report indicated 24,627 I-526 pending at IPO in December 2017 and an average of 2,954 petitions processed per quarter over the last four quarters. 24,627/2,954 = 8.3 quarters to process the pending petitions (estimated average). So an I-526 petition filed in January 2018 would be theoretically likely to wait 8.3 quarters (25 months) for processing, other factors being equal. That’s consistent with the Processing Times Information page, which starts the Estimated Time Range at 25 months. But unequal reality leads to some petitions being processed more quickly.

Understanding Variation in Processing Times

Here’s what IPO has said about I-526 time variation (summarized from communications copied in my log of IPO communications on processing times).

• DHS estimates that the average Form I-526 gets 6.5 hours of touch time.  That means an adjudicator spends less than a day handling the case —  the remaining (and most variable) processing time is queue time and time spent waiting for additional evidence or supervisory approval.
• IPO has at least three queues going for I-526 petitions: (1) a queue for direct EB-5 petitions; (2) a queue for regional center petitions based on investment in projects that haven’t yet been reviewed; (3) a queue for regional center petitions based on investment in projects that have Exemplar I-526 approval or previous I-526 approvals.  The following chart illustrates my understanding of IPO Deputy Chief Julia Harrison’s description of the process.
  
  IPO indicates that each queue has dedicated staff working on it. Petitions within each queue are ordered by earliest filing date. A regional center petition for a project not previously reviewed must wait in Queue 2 (for project-specific adjudication) and then again in Queue 3 (for investor-specific adjudication). RC petitions for previously-approved projects advance straight to Queue 3. IPO encourages communication between team leaders on the Queue 1 and Queue 2/3 side to ensure that direct and RC petitions filed at the same time move forward concurrently. With this complex process, it’s unsurprising that IPO appears far from its intention to process cases more-or-less in the order in which they are received.
• Factors that can speed I-526 processing per IPO:
  • Investing in a project with an approved Exemplar and/or previously-approved I-526
  • Having a clear, high-quality petition (this is important when evidence requests and supervisory approval are the major variables — besides queue time — in overall processing time)
  • Having an approved expedite request (this shortens the queue time, not the adjudicator touch time).
• Factors that can slow I-526 processing per IPO:
  • Having a petition that’s poor-quality, unclear, problematic, or otherwise inspires IPO to request additional evidence
  • Filing with/after a surge of other people who filed poor-quality petitions
• Factors that don’t affect I-526 processing time per IPO:
  • The investor’s nationality. (IPO does not currently sort petitions by nationality. There is no hold-up for China-born petitioners at the I-526 stage, as there is at the visa stage. However, IPO asks whether they should change that — considering that fast I-526 approval doesn’t help China-born investors facing a long visa wait regardless. Also, stats show that I-526 denial rates are much higher for some countries than others, which makes me suspect that IPO finds some countries’ source of funds and background checks more challenging than others – which could naturally be associated with longer processing times. So even if the process is FCFS for all nationalities, it’s probably not FIFO for all nationalities.)
  • Whether the petition is for a direct or regional center investment. (IPO claims that they try to move direct and RC petitions forward concurrently. However there may be some regional center advantage in practice since direct petitions are often the first in a project and cannot take advantage of Exemplar approval.)
  • Project size. (IPO reports that they do not privilege petitions for big projects with many investors. But some anecdotal evidence suggests otherwise.)
  • TEA status. (Some legislative reform proposals have suggested offering quicker processing to petitions based on investment in a Targeted Employment Area, but IPO does not report having any such policy now.)

Expedited Processing
EB-5 forms, like other immigration forms, can apply for and benefit from expedited processing under certain limited conditions. Expedited processing reduces the time a form takes to reach an adjudicator’s desk. It does not reduce the time to adjudicate the petition, and does not reduce the visa wait time for petitioners from countries with a cut-off date.

• For official information, see https://www.uscis.gov/forms/expedite-criteria
• Here is the most balanced and helpful article I’ve read on the topic: Analyzing the Recent Trend of EB-5 Expedited Processing by Joseph Barnett, Partner, Wolfsdorf Rosenthal LLP (originally published in the 2018 Q3/4 Regional Center Business Journal)
• This article gives historical context: Anatomy of a Successful EB-5 Expedite Request (May 2013)
• This article gives the perspective of counsel representing a client who promotes expedited processing: Successful Expedited Case Processing in EB-5 (September 2018)
• This article provides a critique: The Great EB-5 “Expedited Processing” Debate: The Issue of “False Inducement” (September 2018)

Individual Processing Time Experience

Individual processing time variation means that some people wait longer than the theoretical average 25 months for I-526 approval, while others receive approval much more quickly.

My best evidence for faster-than-average approval is priority dates for pending visa applications. If all I-526 take 2 years to process, then Department of State should have been receiving applications in 2017 from people who filed I-526 in 2015. In fact, as of October 2017 Department of State reported having over 1,500 pending visa applications based on I-526 petitions filed in 2016 and 2017. Assuming an average 3 visa applications per approved petition, that reflects about 500 I-526 petitions approved and advanced to the next stage within a year of filing. And the DOS report only mentioned pending applications for five countries, not counting all applications for the year. I-485 inventory statistics likewise show many pending status adjustment applications with recent priority dates.

I set up a Google Form to collect reports of processing time experience from individual investors. (Entries still welcome!) In the very limited sample of entries so far (which appear in this Google Sheet), I-526 approvals in 2017/2018 that were reported to me had an average processing time of 19 months, with standard deviation of 7 months. The following tables summarize results reported in my Form so far.

Resources for Investors

• I set up an EB5 Forum for investors to discuss EB-5 experience. (Right now it’s private but anyone’s free to join – just sign up. I participate in the conversation occasionally as I have time.)
• Some blog readers have set up a group using the Telegram app to share I-526 experience. I’m not on this myself, but I hear that discussion has been lively. Here’s the link to join: https://t.me/EB5VisaGroup If you know of other social media for EB-5 investors, alert me and I’ll publish links here.
• Here’s my I-526 Time spreadsheet with data and prediction tool, and my log of communications from USCIS regarding processing times. Keep the links; I update the files regularly as new information becomes available.
• My post I-526 and EB-5 visa wait times; country-specific effects of potential changes (June 18, 2018) examines the separate question of the time to get an EB-5 visa (conditional permanent residence).
• Helpful articles: Options for EB-5 Investors When Form I-526 Petitions Are Pending Too Long and Mandamus Lawsuits on Delayed EB-5 Adjudications (Wolfsdorf Law)

Additional Note

My series of timing posts is missing an important piece: analysis of the steps and time factors (for countries with no cut-off date yet) between receiving the Form I-797, Approval Notice for the I-526 and claiming an EB-5 visa number. Especially Indians are trying to calculate: if I can count on receiving I-526 adjudication in the next few weeks, can I count on getting allocated a visa number in the advance of the Visa Bulletin giving a cut-off date for India? The point at which the visa number actually gets allocated, and the factors/timing between I-526 approval and that point, vary between I-485 and consular processing, and I don’t understand it all yet. But potential investors should include this in discussions with counsel, because delays can be considerable for consular processing anyway. I’m hearing reports of USCIS taking  8+ months just to forward I-526 approvals to the National Visa Center. Ironically, it seems that the faster USCIS adjudicates I-526, the more it drags its feet on advancing that approval to the next stage. But this is a developing situation, and I have limited examples. Here is my background reading list so far FYI. Please email me any additional helpful articles and current timing information.

• NVC Timeline for Consular Processing (October 11, 2017) Miller Mayer
• Adjustment of Status Process (June 20, 2017) Miller Mayer
• The Operation of the Immigrant Numerical Control System Department of State
• The “Red Combo Card” Option for EB-5 Indian Nationals – Will It Work? (September 8, 2018) Wolfsdorf Rosenthal

UPDATE: I’ve added a EB-5 Timing page to collect links to all data and posts related to EB-5 visa availability, visa allocation, and wait times.

FY2018 Q1 EB-5 Form Processing Statistics

USCIS has updated its Immigration and Citizenship Data page with statistics on EB-5 forms received, processed and pending in the first quarter of FY2018 (October to December 2017). Form I-526 and I-829 are in the Employment Based subsection, and (I belatedly realize) Form I-924 is in the Forms subsection in the “All Forms Report.” (The row title is labeled “I-924/924A” for some quarters’ reports and just “I-924” in others, but it’s evident from the numbers that the data is for I-924 only, not including I-924A. I assume the row comprises initial applications and amendments.) This processing volume information provides the best picture we have of the progress and prospects for IPO processing.

My charts below summarize FY2018 Q1 data compared with previous quarters, and highlight trends. A few notes:

• IPO processed fewer forms overall in FY2018 Q1 than in the previous quarter. The volume of I-526 and I-924 processed stayed about the same on average over the past few quarters, while I-829 volume leapt and then tumbled. I had hoped for a more positive growth trend, and was disappointed.
• However, annual numbers trend in a positive direction, with IPO improving processing volume every year, and annual adjudications growing at a slightly faster rate than annual receipts.
• I-526 and I-924 receipt numbers continue to correlate with regional center program sunset dates, but with smaller and smaller surges.
• I-829 receipts increased last quarter as expected following the mysterious dips in previous quarters.
• I-924 adjudication has been remarkable for number of denials.
• IPO ended December 2017 with about twice as many pending I-526 and I-829 as it’s proven able to process in a year, and nearly three times as many I-924. So if we estimate processing times by dividing inventory by flow rate, that yields a 2-year processing time estimate for I-526 and I-829, and three-year estimate for I-924. That volume-based estimate matches exactly with the base month that USCIS posts on its new Processing Time Information page for I-526 and I-829, which makes me think they’re using the same equation. USCIS’s processing time estimate for I-924 is much lower, however. Maybe they plan to dramatically increase volume of I-924 adjudication, or disappear some of the pending backlog?
• FY2018 Q1 showed fewer I-526 adjudications and more I-526 receipts than I’d expected, so I recalculated my I-526 time prediction model accordingly.

Now that I’ve chosen to spend so much time sweating over Excel and Photoshop and injuring my eyes to make this post better than it needs to be, and as helpful as possible to you, I shall recopy my Paypal plug below. (Thank you to the 26 readers who contributed to the blog since I opened the option last month.)

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4/23 Visa Numbers (China, Vietnam, India, Brazil, S. Korea, Taiwan)

[10/30/2018 UPDATE: for more recent data and predictions, see my post AILA/IIUSA Forum Updates (Kendall, Oppenheim, visa availability)]

Visa Numbers Update

Charlie Oppenheim, Chief of the Visa Controls Office at the U.S. Department of State, spoke about EB-5 visa numbers and allocation at the IIUSA conference on April 23. This post summarizes interesting data from his slides. (The tables pictured below are also in my increasingly untidy Backlog Calc Excel file. When I have time, I’ll reorganize the file and recalculate projections.) I’m relying on a partial video recording and reports from others for this post, not having heard Mr. Oppenheim’s talk in person. When someone at the conference posts a substantial report, I’ll link it here. As always, I welcome corrections. [Update: other reports on this presentation from IIUSA and Wolfsdorf Rosenthal.]

Highlights from Mr. Oppenheim’s presentation [with my commentary in brackets, and images showing my summaries of data points from the presentation]:

• USCIS has picked up the pace on I-526 adjudication. The National Visa Center received 25% more EB-5 applicant petitions in 2017/2018 than 2016/2017. That reflects I-526 processing improvement (good news), and results in more people ready to claim available visas (bad news for the visa backlog).
• Visas can be issued by Department of State through consular processing (for applicants residing outside the US) or USCIS through I-485 status adjustment (for applicants in the US). Historically most EB-5 visas have come through DOS, but we’re seeing a steady increase in visas through status adjustment: 991 in FY2015, 1,442 in FY2016, 1,676 in FY2017, and 952 already in the first six months of FY2018. This reminds us to keep an eye on what’s happening at USCIS as well as DOS, when tracking visa number demand.
• Department of State has seen a dramatic increase in visa applications from people outside China. In just the first six months of FY2018, DOS issued 2,735 EB-5 visas to applicants from outside China – more than in the whole of the previous year. That increase in “rest of the world” visas can be bad news for China, because annual visas available to China depend on leftovers from the rest of the world. [My model estimates that the China line is 10 years long assuming 80% of annual visas available to China, and 15 years long if 50% of annual visas are left to China. Also, I wonder if the “rest of the world” bump could reflect IPO taking initiative to prioritize moving non-China I-526 petitions – an idea they suggested in November 2017.]
• Based on growing demand, Vietnam, India, Brazil, South Korea, and Taiwan are on Mr. Oppenheim’s radar for potential to trigger the per-country cap and thus get held back with cut-off dates. Vietnam already has a final action date that Mr. Oppenheim expects to advance by several months in 2019 (but not make it current). He expects to set a final action date for India by June 2019 at latest, and for Brazil, South Korea, and (maybe) Taiwan in Summer 2019. The projected final action date for September 2019 is October 1, 2014 (worst case) or October 15, 2014 (best case) for China and other oversubscribed countries. [Cut-off dates for other countries is good news for China, because those countries get temporarily removed from the queue-cutting “rest of the world” pool, and instead stuck in line behind older Chinese applications for leftover visas.]
• In the Q&A period, Mr. Oppenheim reportedly projected these EB-5 visa wait times: China 15 years, Vietnam 6 years, India 5 years, Brazil and South Korea 2 years. [This time indicates years from today to conditional permanent residence for people filing I-526 today. But these estimates are subject to change depending on future demand trends.]

Consider the lesson from China. EB-5 was still current for China throughout 2014; Chinese applicants didn’t start getting held back with a cut-off date until May 2015. But Chinese investors who filed I-526 back in FY2014 have been affected.  Applicants with 2014 priority dates started getting visas in September 2015 (per the Visa Bulletin) and will still be getting visas into 2019 (per Mr. Oppenheim’s predicted final action dates). That’s a lot of years just to issue conditional green cards to petitioners from one year.  Look at 2014, and then visualize how many years it will take to issue the visas to Chinese who filed I-526 in 2015, 2016, 2017, and 2018, unless something changes. (See my graphic for visual reference.) If Chinese with 2014 priority dates are still in line for visas into the end of 2019, how long will a Chinese with a priority date of today have to wait for a visa? That tower of past petitions is a sobering fact for China, and also any potentially high-volume countries that may end up in line behind China. The prospect of unacceptable wait times creates urgency to advocate for more EB-5 visa numbers. As things are, we can’t keep attracting every year three to four times the number of investors who could eventually get visas in a year, or depend heavily on any one country given the per-country limits.

For additional discussion of factors that could change visa wait times for various countries, see my post I-526 and EB-5 visa wait times; country-specific effects of potential changes (June 18, 2018)

EB-5 Processing Times

Since late March, I’ve been tracking EB-5 forms on the new USCIS Processing Times page. So far the month range has remained unchanged for each form, while the “Case Inquiry Date” has advanced one day per day for each form. No evidence yet of human intervention to update the information, and I rather doubt the link to reality. But for the record, here’s how the system is currently set to auto-advance the “Case Inquiry Date”:

• I-526 case inquiry date: today’s date minus 971 days (i.e. priority date plus 971 days is the date when one can start to inquire about the petition as being outside normal processing times)
• I-829 case inquiry date: today’s date minus 893 days
• I-924 case inquiry date: today’s date minus 663 days

FYI, of people who’ve filled out my I-526 processing experience Google form so far, a majority of those with approvals  in 2018 had priority dates in 2016, and some even in 2017. (Form results here.)  Apparently IPO isn’t simply processing petitions from 2015, as the published Processing Time Information would suggest.

New TEA Data

The Bureau of Labor Statistics has made its annual Spring release of employment data for the previous year, which means a new data set for calculating Targeted Employment Area qualification.  Impact DataSource explains what changed. To learn more, consider signing up for a webinar.

• EB5 Affiliate Network TEA Map Webinar: April 30, 3:00 to 3:30 p.m. EST
• Impact DataSource TEA Map Webinar: May 2, 12:30 PM – 1:30 PM MDT

Other Resources

Speaking of webinars, note that the Council of Development Finance Agencies is hosting a course  designed to provide a substantial practical introduction to EB-5.

• Intro EB-5 Finance WebCourse May 23-24, 2018, 12-5 PM EST

FY2017 EB-5 Visas by Country

The US Department of State has published Table V Part 3 of the Report of the Visa Office 2017, which gives a tally of visas issued by country for the Employment Fifth preference (EB-5) in FY2017. If we believe USCIS processing times reports, these should be visas based on investments/petitions from 2015 or earlier. A few points to note:

• Having issued slightly fewer than the annual EB-5 visa quota last year, DOS compensated by going slightly over the quota this year.
• Vietnam and Brazil are the countries with greatest increase in EB-5 visas issued between 2016 and 2017. South Korea showed the largest drop.
• South America is the region with the greatest increase in number of EB-5 visas issued in 2017, and Europe the region with the greatest increase in number of nationalities receiving EB-5 visas.
• Compared with 2016, the 2017 report has more countries taking at least one visa, but fewer countries taking over 20 visas. Kudos to the brave lone souls from Angola, Cameroon, Bolivia, Bulgaria, Tajikistan, and Suriname who immigrated last year though EB-5.
• Countries besides China claimed 25% of the 2017 EB-5 visas (compared with 24% in 2016).
• There were 160 fewer visas based on direct EB-5 investments in 2017 than 2016.
• In addition to the Visa Office Report data on EB-5 visas issued during FY2017, we also have data on applications pending at the National Visa Center at the end of FY2017. (I’ve copied a couple charts below, and you can consult the Visas tab in my master visa/backlog spreadsheet for additional detail and source links.) It’s puzzling to look at the different reports together. For example, one wonders why the drop in visas issued to South Koreans in 2017, when there were 278 visa applications for South Koreans left pending at the end of the year. Or why people from Hong Kong got only 81 EB-5 visas in 2017, when there were 447 Hong Kong applications pending in November 2016 and 423 still pending in November 2017. Vietnamese received a hefty 335 EB-5 visas in 2017, just behind China, but 649 Vietnamese applications were still left pending. In total, DOS issued 2,523 visas in 2017 to applicants from countries other than China, but that still left 3,524 applications from countries other than China pending at NVC as of November 2017. Anyone know the story behind the non-China backlogs at NVC?

For reference, here are my posts on the Visa Office Reports from 2016, 2015, and 2014.

For a running tab of EB-5 visas issued through consular processing by country, see the Department of State’s report of Monthly Immigrant Visa Issuances. (The visas with “5” as the second digit in the three-digit code are EB-5 visas: C51, C52, C53, T51, T52, T53, R51, R52, R53, I51, I52, I53.)

UPDATE: I’ve added a EB-5 Timing page to collect links to data and posts related to EB-5 visa availability, visa allocation, and wait times. If you would like to order a personalized timing estimate, see the EB-5 Timing Estimates Page.

Q3 2017 EB-5 Petition Processing Data

The USCIS Immigration and Citizenship Data page has been updated with data from FY2017 Q3 (April to June 2017) for petitions including I-526 and I-829.

In the third quarter we see IPO making wonderful improvement to I-829 processing volume (likely thanks to the new I-829 team announced in March). Meanwhile, I-526 processing fell another step back (possibly due to resources diverted to I-829). We see another pre-sunset-date filing surge, though less dramatic than previous surges. The total number of pending EB-5 petitions increased again in Q3.

Here’s a bonus chart for people involved in advocacy. Notice how I-526 receipt numbers reflect the destabilizing effect of frequent regional center program sunset dates, with each threatened sunset preceded by a surge of EB-5 investors rushing to file. Notice also how much EB-5 demand has exceeded the EB-5 visa quota as currently interpreted. If about 10,000 EB-5 visas need to be divided by four quarters and three visas per investor, then the program can only afford about 800 new I-526 per quarter on average before facing a backlog situation. If Congress intended to accommodate 10,000 EB-5 investments annually, then an average of 2,500 investor I-526 per quarter would sustainable — and reasonable considering actual demonstrated demand.

EB-5 investors watching processing times should also keep the I-526 receipts chart in mind. IPO has spent a whole year processing I-526 petitions filed from July to December 2015, and is still stuck on November 22, 2015 as of the last two IPO processing time reports. But that’s no wonder considering the huge number of petitions filed July-December 2015. Once IPO finishes that mouthful, dates should advance quickly through the next two relatively light quarters.

For China-born investors trying to figure out what the I-526 numbers mean for the visa backlog, here are bonus charts with historical approvals and receipts by country in recent years. These numbers can help you guess how many non-China investors are among the currently-reported pending I-526 petitions, and how many of recent approvals went to non-China investors. (In other words, guess how many people will get priority in the visa queue.) I summarized these numbers from a complete dataset of I-526 receipts, approvals, and denials by country for every year since 1991 — a dataset you can purchase from IIUSA for the full detail. (For whatever reason these figures released in response to FOIA request don’t exactly match the totals published on the USCIS website, but still  meaningful I think.)  (For more detail, download my spreadsheets on statistics related to the visa backlog, and statistics related to I-526 processing times.)

Q2 2017 EB-5 Petition Processing Data, Audits, Leahy letter

Q2 2017 EB-5 Petition Processing Data

The USCIS Immigration and Citizenship Data page has been updated with data from FY2017 Q2 (January to March) for petitions including I-526 and I-829.

• The fall in I-526 receipts was to be expected, since the previous quarters represented unnatural filing surges around sunset dates. Even 1,731 receipts in one quarter is not sustainable, however. So long as annual EB-5 visas are limited to about 10,000 for investors plus family members, only about 3,330 investors per year can get visas. The US actually benefited from 13,148 EB-5 investments over the past four quarters – but that’s almost four years of visa numbers for investors plus family.  Such a situation is not sustainable. If Congress wants to welcome more than 3,330 investments per year in the future, it needs to address visa availability.
• USCIS processed 567 fewer I-526s this quarter than last quarter – not good news.
• USCIS processed about 200 more I-829 petitions this quarter than last quarter – improvement, but not enough. If IPO continues processing about 300 I-829s per quarter, it will take over six years just to work through the existing backlog of I-829s. The California Service Center managed to process over 800 petitions in the final quarter that it handled I-829, and even IPO did better in early 2016 than it’s doing now. IPO announced their new I-829 adjudications unit in early March, so we may have to wait for Q3 stats to see real improvement.
• The number of I-829 receipts has dropped the last two quarters. I wonder if this reflects petitioners giving up before reaching I-829, or being held up in the waiting line for conditional permanent residence.
• The backlog of pending petitions is a tiny bit less dire than last quarter.

While inputting receipt numbers from this processing data report, I thought to try linking them with the dates in the IPO processing time reports. For example, IPO seems to have been working forever on I-526 cases filed in September 2015, and we might explain this this by looking at the surge in I-526 receipts around September 2015. So I added a tab to my processing times log that tries to make the link. My calculations don’t look right, which may be additional evidence that IPO processing time reports do not simply reflect FIFO case processing.

Regional Center Audits

Notes from a May 12, 2017 meeting between AILA and the USCIS Field Operations Directorate has some Q&A on EB-5 questions (page 10-15), including:

• EB-5 Regional Center Compliance Audit Program: USCIS answered practical questions about the process and content of an audit.
• Investors in terminated RCs: USCIS said that “Until a regional center that has been issued a Notice of Termination exhausts its administrative remedies before USCIS, the agency will generally delay final adjudication  or revocation of I-526 petitions associated with that regional center if the sole factor determining petitioner eligibility is the termination of the regional center’s designation.” (This is a welcome statement considering past evidence to the contrary.)
• Regional Center amendments: In another installment of confusing guidance, USCIS indicated that amendments are required for both geographic area expansion and changes to ownership/org structure/administration, but not “required” in the same sense. The geographic area amendment must be “filed and approved” before I-526s are filed, while “Regional center projects are not on hold while the amendment is pending” in the case of an ownership change amendment

Washington Developments

The Kushner Companies EB-5 roadshow in China continues to reverberate, this time in a letter from Senator Leahy, Representative Conyers, and Representative Lofgren on behalf of the Senate and House Judiciary Committees to the Kushner Companies. The letter focuses on potential conflict-of-interest issues, and airs concerns about EB-5 generally. I’m most interested in this letter for the footnotes, and disturbed by the picture it paints of one-sided and minority-focused EB-5 lobbying. This meeting, for example, gives an unfortunate impression.

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/I-526 petitions filed in 2014 and earlier. (UPDATE: IIUSA has data on I-526 filings by country in 2016, and you can see additional detail in my post on Q3 2017 petition filings.)

Edit: updated link https://travel.state.gov/content/dam/visas/Statistics/AnnualReports/FY2016AnnualReport/FY16AnnualReport-TableV-Part3.pdf
For reference, here are links to my posts with summary charts of 2014 visa numbers by country and 2015 visa numbers by country.