FY2023 Q3 Processing Data, I-956 data, I-526E litigation
July 20, 2023 26 Comments
Yesterday, USCIS finally published performance data for January to March 2023, including — for the first time — receipt and processing data for the new EB-5 forms created a year and a half ago. I’ve copied a summary chart at the base of the post.
Insights from the FY2023 Q2 data report
- USCIS now realizes that pre-Integrity Act I-526 and post-Integrity Act I-526 and I-526E are each fundamentally different forms that need to be reported separately. Thank you USCIS! I’m also happy to see USCIS finally starting to count all the new I-956 forms.
- Despite my pleas, USCIS data reporting still does not include any information about I-526/I-526E filings by TEA category and country of origin — data without which it’s impossible for the public to monitor and preempt potential visa backlogs in the new EB-5 visa categories. (But good news: champion litigator Matt Galati came out this week with sword swinging in the cause of transparency, and filed a lawsuit on behalf of the investor organization AIIA to sue USCIS to provide the data. I am happy to see the EB-5 community working together and taking action to avoid repetition of the backlog problems facilitated by USCIS opacity and obstruction in the past.)
- The USCIS report shows that most EB-5 adjudications in FY2023 have been of forms filed prior to the Integrity Act. This is only fair to the pre-Integrity Act backlog, and also unfortunate for Integrity Act implementation. EB-5 processing volume in Q2 was 66% better overall than the previous quarter (yay!), but still 20% worse than even at the height of the Pandemic (sigh), and still almost four times lower than what IPO processed with fewer employees prior to 2019. It’s great to see a near-term volume trend in the right direction, but the lift is still so small in context of what IPO could and should be doing. Failure rates also continue to be disturbingly high, with a shocking 55% of I-526 completions and 19% of I-829 completions being denials or withdrawals. Matt Galati and AIIA are also pursuing litigation to get at the reasons behind the increasing number of denials.
- USCIS has received approximately 1,217 I-526E and I-526 investor petitions since the new EB-5 law passed in March 2022, and reports processing exactly “N/A” of these forms to date, with N/A defined as “not available.” I interpret N/A as signifying zero. This is unsurprising, considering that investor I-526E cannot be processed until the associated I-956F and I-956 have been processed for project and regional center approval, and 956 adjudications are proceeding slowly. Also, considering the 11,206 pending I-526 with earlier filing dates before the law change. But what if USCIS does pick up steam and processes all those 1,217 pending post-Integrity Act I-526? If a thousand petitioners arrive at the visa stage, each bringing a spouse and child, that would translate into demand for 3,000+ EB-5 visas — about the number of EB-5 reserve visas available in a typical year. So we are correct to start thinking already about potential backlogs and try to get the data needed to track/avoid them. (Update: I have now heard of three I-526E approvals, including this one.)
- USCIS reports receiving just over 132 I-956F Applications for Approval of Investment in a New Commercial Enterprise since the new regional center program’s inception in May 2022. USCIS had processed exactly “D” of these forms as of March 2022, with D representing a number that USCIS considers too small to report. (See the base of this post for a list of the I-956F approvals that I’ve seen reported online.) I-956F approvals are critical, as the signal that I-526E processing could move forward.
- It appears that about 300 regional centers have committed to activity under the new Integrity Act regional center program by filing a I-956 application for program compliance and I-956G annual report. Meanwhile the USCIS Regional Center List continues to show 640 regional centers, with no hint as to which are simply legacy shepherds of pre-Integrity Act investment and which have taken the necessary steps to comply and raise funds under the new program. So confusing! How can we tell which regional centers out in the market are in compliance?
- Since October 2022, USCIS reports approving 28 I-956 regional center applications. Some of these are pre-Integrity Act regional centers reaffirming designation, while others are new. The USCIS Regional Center List appears to mark RCs that are new post-Integrity Act with a new style of ID number beginning with the letters RC. From examining post-Integrity Act RCs, I learn that the “regional” in “regional center” has a loose definition, with 3+ states being the standard “limited geographic area” for the purpose of pooling EB-5 capital.
- The USCIS report includes a “Processing Time” column that gives a figure representing the median age of forms processed during that period. It’s important to realize that this number is not general or predictive. For example, Form I-956 shows a “processing time” of 7.3 months. This only means that among the 18 I-956 approved last quarter, the median processing wait was 7.3 months — saying nothing about the wait for unprocessed forms. For prediction, it’s more relevant to look at the number of I-956 pending — 280 — and how long it would take to process that many if IPO continues at the rate of 18 approvals per quarter or 6 per month. 280/6=47 months — yikes! Keep stepping up your game, USCIS!
- Once again, I notice that reported numbers rarely quite add up. Last quarter’s period-end pending plus this quarter’s receipts minus this quarter’s processed rarely equals this quarter’s period-end pending. Q1 receipts reported a few months ago do not match the Q1 receipts implied in this quarter’s report of Q2 and fiscal year total receipts. So take each report with a bit of salt. USCIS needs better technology. And if reports can’t be more clean, as least they might be more prompt. It’s July, and we’re only now finding out a bit of what’s been happening with EB-5 forms since January.
FY2023 Q2 Data | |||||||
Form | Description | Received | Approved | Denied | Total Processed | Pending | Processing Time (median months) |
I-526 (legacy) | Immigrant Petition by Alien Investor | – | 406 | 498 | 904 | 11,602 | 50.1 |
I-526 | Immigrant Petition by Standalone Investor | 40 | – | – | – | 90 | |
I-526E | Immigrant Petition by Regional Center Investor | 495 | – | – | – | 1,127 | |
I-526 Total | 535 | 406 | 498 | 904 | 12,819 | ||
I-829 | Petition by Investor to Remove Conditions | 352 | 362 | 85 | 447 | 10,542 | 48.8 |
I-956 | Application for Regional Center Designation | 176 | 18 | D | D | 280 | 7.3 |
I-956F | Application for Approval of Investment in a Commercial Enterprise | 50 | D | – | D | 132 | N/A |
I-956G | Regional Center Annual Statement | 287 | – | – | – | 282 | N/A |
I-956H | Bona Fides of Person Involved in Regional Center Program | 1,007 | – | – | – | 2,147 | N/A |
I-956K | Registration for Direct and Third-Party Promoters | 38 | – | – | – | N/A | N/A |
I-924 | Application For Regional Center Designation | – | – | D | D | 84 | N/A |
I-924A | Annual Certification of Regional Center | – | – | – | – | 1,734 | N/A |
Log of I-956F Approvals (please email suzanne@lucidtext.com with any additions to this table)
Regional Center | Project | Filing Date | Approval Date | TEA |
Pine State Regional Center | Big River Steel Phase II | 6/30/2022 | 3/24/2023 | rural |
Manhattan Regional Center | Manhattan 11th Ave Marriott Tribute Portfolio Hotel Project | 7/19/2022 | 6/15/2023 | high unemployment |
Can Am | Jefferson Energy Project II | 7/6/2022 | 6/21/2023 | |
CMB | Group 78 | 7/6/2023 | high unemployment | |
Can Am | Rhoads III Project | 7/6/2022 | 8/10/2023 | high unemployment |
CMB | Group 82 | 8/11/2023 |