EB-5 Updates

USCIS Provides Additional Guidance (sustainment, termination)

October 11, 2023 1 Comment

UPDATE: This post now copies the version of the USCIS email sent out at 11:30, which seems to be a correction to the email sent at 10:45. This content is also now posted in the USCIS Newsroom.

From: U.S. Citizenship and Immigration Services <uscis@public.govdelivery.com>
Sent: Wednesday, October 11, 2023 11:39 AM
Subject: USCIS Guidance: EB-5 Reform and Integrity Act of 2022

USCIS Guidance: EB-5 Reform and Integrity Act of 2022

On Oct. 11, we issued additional guidance on our interpretation of changes to the EB-5 Immigrant Investor Program in the Immigration and Nationality Act (INA) made by the EB-5 Reform and Integrity Act of 2022 (RIA).

This guidance clarifies the required investment timeframe for EB-5 investors who file Form I-526, Immigrant Petition by Standalone Investor, or Form I-526E, Immigrant Petition by Regional Center Investor, on or after enactment of the RIA (March 15, 2022), as outlined in the RIA. This guidance also clarifies our interpretation of INA 203(b)(5)(M), regarding investors who are associated with a terminated regional center.

Background
On March 15, 2022, President Biden signed the RIA as part of the Consolidated Appropriations Act. Among other things, the RIA modified the required investment timeframes for investors who file petitions for classification Form I-526, Immigrant Petition by Standalone Investor, or Form I-526E, Immigrant Petition by Regional Center Investor, after enactment and to subsequently remove the conditions on their lawful permanent resident status. The RIA also added other provisions to the INA permitting good faith investors to maintain eligibility in the event their regional center is terminated.

For investors seeking to remove conditions on their permanent resident status under INA 216A based on an EB-5 immigrant visa petition filed on or after enactment of the RIA (post-RIA investors), the RIA removed the requirement that the investor must sustain their investment throughout their conditional residence.

The RIA also modified INA 203(b)(5)(A)(i) (the general requirement for classification to invest or be actively in the process of investing the requisite amount of capital in a new commercial enterprise) by adding new language that the investment required by INA 203(b)(5)(A)(i) must be expected to remain invested for at least two years.

Key Points
Because these changes made by the RIA, investors filing petitions for classification after enactment of the RIA no longer need to sustain their investment throughout their conditional residence, which may be many years in the future and dependent on factors outside the investor’s control, such as visa availability.

Instead, the INA now requires only that the investment must be expected to remain invested for at least two years, provided job creation requirements have been met. Although the statute does not explicitly specify when the two-year period under INA 203(b)(5)(A)(i) begins, we interpret the start date as the date the requisite amount of qualifying investment is made and believe this interpretation is consistent with the statutory language. In other words, we will use the date the investment was contributed to the new commercial enterprise and placed at risk in accordance with applicable requirements, including being made available to the job-creating entity. If invested more than two years before filing the I-526 or I-526E petition, the investment should still remain at the time the I-526 or I-526E is properly filed so we can appropriately evaluate eligibility.

Before enactment of the RIA, the termination of a regional center would have been considered a material change to eligibility for investors who had not yet obtained conditional permanent resident status and, consequently, would likely have resulted in denial or revocation of associated investor petitions. The RIA added a new provision at INA 203(b)(5)(M) that permits good faith investors associated with terminated regional centers to retain eligibility in certain circumstances. Because the statute does not explicitly specify whether it applies only to post-RIA investors or also to pre-RIA investors, we are providing guidance on how we interpret this new provision for pre-RIA investors upon regional center termination:

We interpret INA 203(b)(5)(M) to apply to pre-RIA investors associated with a terminated regional center (or debarred new commercial enterprise or job-creating entity). However, rather than strictly applying the notification timeframes at INA 203(b)(5)(M)(ii) and (iii)(I), we will extend the deadline for pre-RIA investors to respond to a regional center termination notification until the agency adjudicates their Form I-526 petition. If needed, we may issue a Request for Evidence or Notice of Intent to Deny for the investor to establish continued eligibility.
We may use the procedural flexibilities provided under INA 203(b)(5)(M) to extend the response deadline of 180 days for notices of continued eligibility. The extension will decrease the likelihood of operational burdens and expand the intent of the statute to permit good faith investors of terminated regional centers to retain their eligibility.
When a regional center is terminated for purely administrative noncompliance, we may determine that the termination would generally not adversely affect a pre-RIA investor’s basic eligibility under INA 203(b)(5) (including the ability to continue to claim indirect jobs), because their investment and resulting job creation would likely remain undisturbed.
We may choose not to extend applicable response deadlines when a regional center is terminated for substantive reasons that may affect continued eligibility of their associated investors.

More Information
For more information on the EB-5 Immigrant Investor Program or USCIS, please visit uscis.gov or follow us on Twitter, Instagram, YouTube, Facebook, and LinkedIn.

Filed under EB-5 Law & Policy

Integrity Fees and I-956G Annual Report in 2023 (Who really has to file, and why)

October 6, 2023 4 Comments

10/11/2023 UPDATE: USCIS has now published a Q&A that discusses the impact on investors of regional center termination, beginning with the statement that “Given the large volume of investors that could be affected by terminations of previously designated regional centers based solely on noncompliance with certain new administrative requirements added by the RIA, such as paying the annual Integrity Fund fee, we interpret the RIA in a manner we hope permits good faith investors of terminated regional centers to retain their eligibility.” Please refer to the USCIS Q&A before reading my post, which I will need to revise as time permits.

[ORIGINAL POST]

Since the EB-5 Reform and Integrity Act (RIA) passed in March 2022, there’s been some confusion and dispute about how RIA applies to regional centers and EB-5 investments that pre-date RIA. After all, RIA creates new rules and procedures primarily for capital raising activities. How do these reasonably apply to regional centers with no post-RIA capital raising activities? Do regional centers that were designated and investments made pre-RIA get any different treatment post-RIA?

After a year and half of conflicting notices on the USCIS website, industry comments, litigation, and other bits and pieces of guidance (more on that below), one point has become clear: USCIS expects every regional center without distinction to pay the annual Integrity Fee of $10,000 or $20,000 and to file the I-956G Annual Report. In 2023, every regional center must pay two years of Integrity Fees (for both FY2023 and FY2024) and also file I-956G, or else be terminated in 2024.

If a regional center has no post-RIA project plans anyway, why jump these expensive hoops and why care about termination? But the regional center’s past investors must care. An EB-5 investor’s continued eligibility depends on having a regional center sponsor in good standing throughout the investor’s EB-5 process, however long that process may take. According to INA 203(b)(5)(M), a regional center termination will be followed by denials, revocations, and conditional permanent residence status terminations for all of the regional center’s past investors, unless the investors can manage to affiliate with another regional center. (Separate article coming shortly on this topic.) [UPDATE: the 10/11 USCIS Q&A contradicts this point.]

Here are the instructions, followed by the background of ambiguities and arguments around these requirements.

Regional Center Integrity Fee: The latest USCIS “Alert” on Integrity Fee payments, published on September 29, 2023, can be found here: https://www.uscis.gov/IntegrityFund. The Alert acknowledges that “information about the due dates and penalties might not have been clear” but gives another chance for payment with the bold-face warning that “we will take steps to terminate any regional center that, on or before Dec. 30, 2023, has not paid the required EB-5 Integrity Fund fees for FY 2023 and FY 2024. NOTE: We will reject Integrity Fund fee payments for FY 2023 and FY 2024 we receive after Dec. 30, 2023, including those made in response to a Notice of Intent to Terminate.” (To avoid the FY2024 late fee, pay before October 31, 2023.)
Regional Center Annual Report: The latest I-956G annual report form, dated as of July 2023, can be found here https://www.uscis.gov/i-956g. Unlike the initial I-956G edition of July 2022, which asked for reporting specific to post-RIA NCEs (I-956F), the current form explicitly covers pre-RIA activity and NCEs. It asks the regional center to report on “each capital investment project undertaken by such NCE with active EB-5 investors (i.e. those who are seeking classification under INA 203(b)(5) or who have obtained conditional permanent resident status and not yet filed for removal of conditions),” and to provide data not only for recent activity but “over the lifespan of the project.”

In theory, RIA’s new rules should apply prospectively, not retroactively, but it’s complicated. Regional centers with only pre-RIA capital raises are still asked to grapple with Form I-956G and its questions about compliance with new rules for post-RIA capital raises. Regional centers with no new capital raises are still asked to pay $10,000 or $20,000 every year to fund oversight for new capital raises. EB-5 investors who started the process pre-RIA are still dependent on their sponsor’s ongoing eligibility post-RIA.

How did we get here, and what arguments have been made along the way?

Initially, USCIS interpreted RIA as creating a new regional center program and terminating the previous program — meaning a clear break between past and future. Under that interpretation, pre-RIA regional centers were no longer designated and had no grounds to file annual certifications or amendments (according to the April 2022 Q&A on the USCIS website), while pre-RIA investors were protected as a function of the protections around expiring legislation. But Behring Regional Center filed suit to challenge that interpretation, instead fighting for continuity between pre-RIA and post-RIA regional center designation. The litigation ended in August 2022 with a Settlement Agreement in Behring’s favor. The Settlement specified that “previously approved regional centers sponsoring new projects or new investors under the Integrity Act will comply with all the requirements of the Integrity Act” and “if a previously approved regional center fails to file a Form I-956 application or amendment by December 29, 2022, it may no longer engage in any activities under the Integrity Act, including sponsoring I-526E visa petitions or the development of new projects.” Sadly, the Settlement Agreement was silent on the question of what happened to previously approved regional centers NOT sponsoring new projects or new investors under the Integrity Act, but merely needing to stay designated for the sake of past investor eligibility.

USCIS told Behring plaintiffs on October 14, 2022 that “USCIS has not determined what will happen to regional centers that choose not to file Form I-956. Specifically, it has not decided whether such regional centers will be terminated, whether they will have to file I-956H, whether they will have to file annual statements, or whether any of the RIA requirements apply to them.”

On December 23, 2022, USCIS published an “Alert” on the website (which remains on the site to this day), that “Dec. 29, 2022, is no longer the deadline to file Form I-956, Application for Regional Center Designation, amendments, as required by the Behring Settlement, and Form I-956G, Regional Center Annual Statement. USCIS is extending this deadline until we publish guidance that clarifies the requirements of these forms.”

Also in December 2022, USCIS slipped a file called I-956-001 NEW 60-Day Public Comment Response Matrix 20221207 among the Federal Register supplementary documents for Form I-956. This deeply buried file is the most extensive available Q&A on the various I-956 forms, with 126 responses by USCIS to public comments. For example, Q&A #90 addresses a comment by Ron Klasko who suggested “that a regional center that wishes to continue to exist solely to meet its contractual and fiduciary obligations relating to pre-RIA projects, but does not intend to file form I-956 to sponsor new post-RIA projects, should not be required to file Form I-956G, which requests information and references forms that do not apply to these regional centers.” USCIS did not take this fine point, but simply responded to Klasko that “Each approved regional center must file Form I-526G.” Q&A #51 addresses a I-956G comment from AILA arguing that “regional centers designated prior to the RIA that still choose to operate under the RIA are not required to provide data for fiscal years prior to the RIA passage.” USCIS disagreed in its response: “The statute does not distinguish between capital invested before or enactment of the RIA (EB-5 Reform and Integrity Act of 2022) for purposes of reporting under INA 203(b)(5)(G).” (AILA then shot back with a follow-up letter arguing in detail that some I-956G questions retroactively apply RIA requirements, and why that’s wrong, but AILA’s suggested changes to I-956G still did not make it into the revised form.)

In January 2023, USCIS announced a stakeholder meeting where “We will discuss issues related to regional center operations,” including “those who do not wish to solicit investments for new projects under the RIA.” USCIS received so much written feedback that they first delayed the meeting, to give more time to review all the feedback, and then cut the meeting agenda. As IPO Chief Alyssa Emmel said in the April 25^th meeting: “While we’re unable to discuss the regional center operations and investment period topics today, please rest assured that USCIS is engaged in ongoing efforts at the immigrant investor program office and across the agency to ensure that when we do have updates, we’re equipped to provide the EB-5 stakeholder community with clear guidance.”

In meeting with the Behring plaintiffs on May 1, 2023, USCIS reiterated that “Form I-956 and I-956G filing date deadlines still not set. These deadlines continue to be pushed back until the agency publishes guidance clarifying the requirements of these forms.”

The promised “guidance that clarifies the requirements of these forms” has not yet been published, so far as I know. But I believe that I-956G, at least, nevertheless has a real deadline for all regional centers in December 2023, and that the Integrity Fee requirement is being applied to all regional centers this year without exception. I believe this from the latest fee and form instructions, and because USCIS has yet to grant the rationales for making any exceptions. [10/11 UPDATE: the new USCIS Q&A is part of the promised guidance.]

Everyone agrees that regional centers designated and active under the new law must tick all the compliance boxes under the new law, including filing I-956G annual reports and paying the Integrity Fee. The open question has been over which compliance boxes reasonably apply to regional centers that were designated under the old law and not taking any more investors under the new law. But so far, USCIS has not entertained that question because it has not granted any distinction between types of regional centers. This comes out in USCIS response to litigation. In Sunshine State Reg’l Ctr., Inc. v. Jaddou (23-cv-60795), “Plaintiff alleges that the Act distinguished between those Regional Centers created before the Act was passed, ‘Legacy-Regional Centers,’ and those after the Act was passed, ‘RIA-Regional Centers.’” But both USCIS and ultimately the judge disagreed. To quote the Opinion of May 30, 2023, “Plaintiff has not shown that it is likely to succeed on the argument that the statute unambiguously distinguishes between Regional Centers created before and after the Act for purposes of the Integrity Fund Fee.” In Gulf States Regional Center, LLC v. USCIS (2:2023cv01354), “Gulf States attempts to distinguish between the phrases ‘each regional center designated under subparagraph (E)’ and ‘any regional center’ used throughout the RIA,” (the logic that I also used in my February 2023 suggestion to USCIS about fairly applying RIA requirements). But USCIS disagreed (as of Doc 49-1 filed 9/13/2023) that “subparagraph (E) is not limited to regional centers approved after the RIA’s enactment, but governs all regional centers in existence, regardless of their time of designation.” At least in litigation, USCIS has not entertained any ground of distinction that would allow treating regional centers differently depending on the time of designation and whether or not they choose to raise new EB-5 investment under RIA. Did the Behring Settlement force this position? Anyway, it seems to be the reality.

Back in October 2022, USCIS said it had then “not determined what will happen to regional centers that choose not to file Form I-956” to sponsor new projects and investors under RIA, including “whether such regional centers will be terminated, whether they will have to file I-956H, whether they will have to file annual statements, or whether any of the RIA requirements apply to them.” USCIS has not yet published a revision to this statement as of October 6, 2023. But based on the above sources, I gather that USCIS has, at least, firmly decided that the requirement to file I-956G and pay the Integrity Fee apply universally this year — and prepared to terminate regional centers that do not comply. Regional centers should prepare accordingly for Integrity Fee(s) due by the end of this month and annual reports due by the end of December. (And let me know if there are other court cases or buried sources of USCIS guidance that I should cite in this post.) [UPDATE: See EB-5 Questions and Answers as of October 11, 2023.]

Filed under EB-5 Law & Policy

EB-5 Form Processing Update through FY2023 Q3 (June 2023)

September 25, 2023 6 Comments

USCIS has updated the Immigration and Citizenship Data page with reports for forms filed and processed through June 30, 2023.

Highlights from EB-5 Data in The Q3 All USCIS Application and Petition Form Types report

I-956 and I-956F Processing Times: The report states median processing times for Form I-956 (10.8 months) and Form I-956F (11.1 months), which should help people inquiring with USCIS and considering Mandamus actions. (This is useful reference because the Processing Times page does not report yet on I-956 or I-956F. The USCIS-reported times are practically meaningless for prediction, since they’re calculated as the median processing time only of the ≈77 I-956 and the “D” I-956F processed to date, with no adjustment for the waiting time of the hundreds of applications NOT processed. But pending applicants can still use the USCIS-reported times to their advantage when communicating with USCIS.)
Post-RIA EB-5 Demand and Processing: The report shows steady uptick in the number I-526 and I-526E filings, with a total 1,898 post-RIA investor I-526 and I-526E pending as of June 30, 2023. That represents enough EB-5 investors under the new law as of June to claim anywhere from 3,000 to 6,000 visas, depending on approval rates and family size. How we would like to know the country and TEA category distribution of this accumulating visa demand! We’d also like to know whether any of these applicants will be able to claim some of the plentiful FY2024 visas, or if we can expect them to reach the visa stage in future years with smaller visa availability. The number of I-526/I-526E adjudications was still too small to report as of June 30, and processing time listed as “N/A”.
Pre-RIA Petition Adjudication: In Q3, USCIS reported processing slightly fewer I-526 and slightly more I-829 than in the previous quarter. Overall, the processing volume in Q3 looks like great improvement if compared to last year, but still bad if compared to any other time period. The improvement so far is very welcome, but must escalate to get IPO out of its deep processing hole. Dividing petitions pending at the end of Q3 by petitions processed during Q3, I get the following equations for time to clear the backlog if USCIS continued processing at the same rate as in Q3. I-526: 10,802/888=12 quarters to clear the I-526 backlog. I-829: 10,507/474=22 quarters to clear the I-829 backlog. (See my Processing Data page for charts illustrating how adjudications have been spread across filing dates.)
Denial Rates: Denial rates in Q3 were thankfully lower than in recent quarters: 28% for I-526 and 6% for I-829.
Errata: Comparing the Q3 year-to-date report and pending numbers with previous data reports, I find once more that USCIS is either regularly overestimating and then correcting previously-reported numbers, or regularly losing petitions from the inventory. My charts make the assumption that Q3 numbers are correct where they conflict with previous reports.

EB-5 Form Data from FY2023 Q3 Data Report (April 1, 2023 to June 30, 2023)

*Form*	*Received*	*Approved*	*Denied*	*Total Processed*	*Pending*	*Processing Time*
I-526 (Pre-RIA)	–	637	251	888	10,802	48.2
I-526	50	N/A	N/A	N/A	137	N/A
I-526E	649	N/A	N/A	N/A	1,761	N/A
I-829	484	444	30	474	10,507	48.6
I-956	41	48	D	H	273	10.8
I-956F	61	D	–	D	187	11.1
I-956G	12	–	–	–	276	N/A
I-956H	493	–	–	–	2,635	N/A
I-956K	258	–	–	–	N/A	N/A

Report of EB-5 Forms Processed and Pending FY2023 to date from FY2023 Q3 Data Report

*Form*	*Total Processed October 1, 2022 to June 30, 2023*	*Total Pending at June 30, 2023*
I-526 (Pre-RIA)	1,930	10,802
I-526	N/A	137
I-526E	N/A	1,761
I-829	1,252	10,507
I-956	H	273
I-956F	D	187
I-956G	–	276
I-956H	–	2,635
I-956K	–	N/A
I-924	D	40
I-924A	–	1,734

Filed under EB-5 Statistics

EB-5 Visa Status Report for 2023/2024

September 21, 2023 19 Comments

Fiscal Years 2023 and 2024 are good years for EB-5 visa availability, with mixed outlook for visa issuance. I assess the picture by looking at EB-5 quota limits, EB-5 dates in the October 2023 Visa Bulletin and prior visa bulletins, I-526 filing trends associated with visa bulletin dates, the NVC waiting list, monthly visa issuance, and I-526 and I-526E processing trends. The picture that emerges from all this data shows winners and losers created primarily by the processing capacity of USCIS and Department of State. I begin with comments, followed by charts and tables. (9/29 UPDATE: This post has been revised to add monthly data for August 2023 and a revised FY2024 EB visa limit estimate.)

Winners in 2023/2024 EB-5 visa issuance

Win for unreserved EB-5 visa applicants generally

Department of State reports that “most” 2023 employment-based visas available were actually used in 2023 – making this the first year since 2019 without major EB visa loss. And 2024 could be an even better year for unreserved visa issuance, contingent on USCIS and DOS processing capacity. Unreserved EB-5 gets a windfall in 2024 of the 6,400 reserved EB-5 visas not used in 2022, on top of its regular 68% allocation of an unusually high EB-5 limit, for a total of over 14,000 unreserved visas available in FY2024. (See Table 1 below.) If only USCIS and consulates can manage to issue that many visas! Any unreserved FY2024 visas not used in FY2024 will be permanently lost to EB-5.

Win for unreserved visa applicants from India

India continues to be subject to country cap limits, but Mumbai has been issuing EB-5 visas aggressively and efficiently, and the adjustment of status process is working. As result, Indians have received as many as or more than the number of EB-5 visas technically available to Indians in 2022 and 2023 (see charts and tables below).

And the Visa Bulletin is being very generous to India. The October 2023 Visa Bulletin has already moved the India Final Action Date to December 15, 2018, from its pre-retrogression date of June 2018 – thus already releasing more Indian applicants for final action in 2024 than visas available to India in 2024, by my calculation. (My estimate considers the 773 I-526 filed by Indian investors from June 2018 to December 2018, and the about 1,000 unreserved EB-5 visas available in FY2024 under the country cap for investors plus family.) And even more generously, the October 2023 Visa Bulletin gives India EB-5 a Filing Date in April 2022. This allows all Indians in the queue for unreserved EB-5 visas to file I-485 and apply for advance parole and travel benefits — even though EB-5 green cards may not be available for post-2019 Indian priority dates until the end of the decade, absent a large number of dropouts from the current queue. (See my backlog data file for detail, or AIIA’s calculator tool.)

Wins for some unreserved visa applicants from China

Poor performance by many consulates worldwide has meant that rest-of-world EB-5 visa issuance has remained fairly low — below rest-of-world EB-5 demand. This failure benefits Chinese applicants by increasing the number of “otherwise unused” EB-5 visas left available for allocation to the oldest priority dates – i.e. to China-born applicants. EB-5 visa issuance to China in 2023 exceeded what I had expected looking at the waiting list from other countries. (See Table 2 below.) If only the Guangzhou consulate can keep up, the large number of unreserved EB-5 visas available in 2024 should significantly benefit the oldest Chinese priority dates. But it depends on the Guangzhou consulate managing unusually high-volume EB-5 interview scheduling this year.

Another mixed blessing comes from discriminatory policies resulting in high denial rates for Chinese I-526 and visa applications. As hundreds of Chinese keep falling out of the EB-5 backlog due to denials/revocations/withdrawals, those who do remain in the process keep advancing hundreds of spaces closer to getting a visa. The October 2023 Visa Bulletin advances the China EB-5 Date for Filing a whole year — from January 2016 (where the date had lingered since early 2020) to January 2017. This unprecedented large leap potentially allows at least 20,000 more Chinese EB-5 visa applications on the table – or so one would think, knowing that Chinese filed 10,450 I-526 petitions between January 2016 and December 2016. But Department of State must be counting on a large percentage of those 10,450 Chinese EB-5 investors who started in 2016 having subsequently dropped out, or lost their spouses and children, such that their actual visa applications won’t in practice overwhelm the near-term visas available to China. (Depending on rest-of-world visa issuance and Guangzhou capacity, China could get at most up to 10,000 EB-5 visas in 2024.)

Win for a fraction of reserved EB-5 visa applicants

USCIS has recently approved some I-526E, both for rural and high-unemployment projects. Not 100s or 1000s of approvals from what I’ve heard, but at least multiples of 10. USCIS is under pressure to show they are implementing the new law, so they have to adjudicate at least some I-526E instead of just leaving them to wait fairly behind the older I-526 backlog. I’m sure that USCIS can’t possibly manage the 3,000 or so I-526E approvals that would be needed very soon to use the 8,000+ reserve visas available in 2024 (if indeed that many I-526E have even been filed yet). But it’s going to be great for the portion of I-526E petitions that do get approved and advanced in 2024 – they’ll be swimming in visa availability. I-526E that remain pending in 2024 will face narrower visa availability when they reach the visa stage in future years.

Losers in 2023/2024 EB-5 visa issuance

Losses for EB-5 applicants from Vietnam, South Korea, Hong Kong, and Other Countries

Due to USCIS and DOS processing issues, actual EB-5 visa issuance has been lower than demand for many countries with no country cap limit. The National Visa Center had over 5,000 EB-5 applicants registered in November 2022 from countries other than China and India (the only countries with a country cap limit for EB-5). And yet by the end of August 2023, DOS had issued fewer than 3,000 EB-5 visas to those rest-of-world applicants. What’s your EB-5 problem, consulates? You had over 5,000+ EB-5 visas available in 2023 that could’ve gone to those 5,000+ applicants – why not allocate them? (And the problem does seem to be EB-5-specific, since consulates performed pretty consistently overall in 2023 across IV categories.)

Applicants from Hong Kong received fewer than 100 EB-5 visas in 2023 even though over 600 Hong Kong EB-5 applicants were registered and waiting at NVC. What’s the excuse? Why did Ho Chi Minh City issue only 527 EB-5 visas in the first 11 months of 2023, although the year started with over 1,500 Vietnamese registered at NVC (and no country cap limit for Vietnam this year per the Visa Bulletin)? Why do the monthly visa issuance statistics show that many consulates only got going with EB-5 interviews near the end of the year, instead of working consistently throughout the year as they’re supposed to do (or instead of working aggressively at the beginning of the year, as Mumbai did)? In particular, consulates in Seoul, Montreal, Rio de Janeiro, and Bogota did little EB-5 work the start of 2023. Let’s not repeat this pattern in 2024.

There’s a non-trivial risk that unreserved EB-5 could have Visa Bulletin cut-off dates for every single country (as is the case for EB-1 to EB-4) in 2025 or 2026. This could happen if DOS continues to let rest-of-world visa demand pile up from year to year while USCIS keeps adding to the NVC waiting list by approving I-526 from a variety of countries. The investor association AIIA has consular processing problems on its agenda, and we should support efforts to investigate and address this important problem area.

Losses for EB-5 investors who can’t get I-526 or I-526E approval shortly

The Investor Program Office has significantly increased I-526 processing volume in recent months (see my regularly-updated Processing Data page), so I have some hope for visa issuance in 2024. But this great trend must continue and escalate, because 2024 visa availability is only good for qualified visa applicants. People with I-526 or I-526E pending can’t move. The charts on my processing data page reflect the chaotic nature of I-526 processing activity, with some recent cases adjudicated while other older cases get left pending for unknown reasons. The longer I-526 and I-526E remain pending, the more they risk limited visa availability and visa-stage crowds once they finally do reach the visa stage. We depend on you, IPO, to keep increasing processing volume so that EB-5 visas can get issued before they’re lost!

Table 1. EB-5 Visa Availability

EB-5 Visas Available		FY2023	FY2024
A	Base EB-5 Allocation (=7.1% of annual EB)	13,993	11,715*
Unreserved EB-5 Visas Available		FY2023	FY2024
B	Base Allocation for Unreserved (=68% of A)	9,516	7,966
C	Carryover Unused Reserve (from 2 years previous)	0	6,396
D	Total Unreserved Visas Available (=B+C)	9,516	14,362
E	Total available under Country Cap (=D*7%)	666	1,005
F	Average visas available per month (=B/12)	793	1,197
G	Average visas per country per month (=E/12)	56	84
Reserved EB-5 Visas Available		FY2023	FY2024
H	Base Allocation for Reserved (=32% of A)	4,478	3,749
I	Carryover Unused Reserve (from previous year)	6,396	4,478
J	Total Reserved Visas Available (=H+I)	10,874	8,227
Visas Issued		FY2023	FY2024
K	Unreserved Visas Issued	9,516 (estimate)	TBD
L	Reserved Visas Issued	0 (estimate)	TBD
Visas Lost		FY2023	FY2024
M	Unreserved Visas Lost (rolled up to EB-1/EB-2)	0 (estimate)	TBD
N	Reserved Visas Lost (carried over to unreserve)	6,396 (estimate)	TBD

*Note: Table revised on 9/22 to reflect the USCIS estimate that the EB limit in FY2024 is 165,000 — higher than the typical 140,000.

Table 2. FY2023EB-5 Unreserved Visa Issuance through Consular Processing

Country of chargeability	Total EB-5 Applicants Registered at NVC as of November 2022	Actual EB-5 Visa Issuance Through Consular Processing October 2022 to August 2023*
China – mainland born	38,874	5,627
India	1,362	676
Vietnam	1,534	527
Korea, South	560	407
Hong Kong S.A.R.	688	85
All Others	2,480	1,034
Total	45,498	8,356

*Note: In FY2023, DOS should theoretically have issued 666 visas to India (its limit under the 7% country cap), visas to everyone on the NVC waiting list for Vietnam, South Korea, Hong Kong, and other countries (since they have no country limit), and then about 3,500 visas to China (because that’s the difference between rest-of-world demand and the 9,500 visas available in 2023). But in fact, it appears that India and China received more and Rest-of-World countries received fewer visas in 2023 than I would have expected. Table 2 covers visas issued through consular processing only (and only through August 2023), not adjustment of status.

Posts like this take so much time to research and write, and yet can still only answer a fraction of the questions that you may have. I am available to provide additional data and more detailed explanation, and to address individual questions. Just email me at suzanne@lucidtext.com to schedule a paid consultation. I have also made data available on the EB5 Timing and Processing Data pages. For visa wait time predictions, note that AIIA has combined my data library with their FOIA data and created an automated Pre-RIA Visa Wait Time Calculator. The AIIA tool is nice because it’s built around a core of known fact — how many EB-5 investors per country started the EB-5 process by filing I-526 — and then allows the user add assumptions about unknown visa-demand variables such as future family size and denial rates. Note also that IIUSA has a nice article on the topic of FY2023 consular processing, including comparison with previous years: IIUSA Data Analysis: EB-5 Visa Issuance Monthly Data Updates for FY2023 (September 2022 – July 2023).

Filed under EB-5 Statistics

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

Filed under EB-5 Statistics, Updates from USCIS

I-526 processing update

July 18, 2023 23 Comments

Today, USCIS published a new page titled Update to Visa Availability Approach for Form I-526. I’m quoting the page in full below, for the record in case the content changes. In short, USCIS announces a plan to assign I-526 for the same NCE to the same adjudicator(s), for the sake of efficiency considering overlap in project documents. USCIS has long had a three-queue I-526 system in place, with the third queue reserved for I-526 with projects already reviewed and visas available. Today’s change appears to be that I-526 in this third queue will now be officially assigned based on project groupings rather than simply in first-come-first-served order by filing date to the first available examiner. (You can see my log of USCIS announcements to compare today’s process description with previous very similar process descriptions.) Despite the title, the announcement specifies no change to the visa availability approach. Today’s announcement is just a new admission that USCIS can/will group I-526 by project when assigning petitions. Individual I-526 petitioners and projects will benefit or suffer from the change depending on whether their NCE gets assigned earlier or later than others, and to a solid or faulty adjudicator.

We shall see whether efficiencies result from today’s announcement. I-526 in a queue where the project had already been reviewed should never have been getting duplicative project review with each petition, regardless of who reviewed each petition associated with a previously-approved project. If duplicative review has happened in the past with multiple adjudicators, that was a deference problem. But if USCIS can’t teach its adjudicators deference, at least grouping projects by adjudicator should reduce the time wasted in second-guessing decisions.

The real headline behind this announcement is that USCIS has progressed to the point of assigning I-526 filed in November 2019 for adjudication. (You also know this if you follow the charts I post on my Processing Data page.) November 2019 is nearly the end of the line for the pre-Integrity Act I-526 backlog (after that, the price increase, Pandemic, and regional center program shutdown flattened demand, meaning few I-526 filings in 2020-222). USCIS unfortunately still isn’t close to clearing the I-526 backlog, since so many I-526 with early filing dates have been left behind, but this progress to the last filing surge in November 2019 at least gives hope and strengthens arguments regarding unreasonable delay.

Today’s announcement gives no hint regarding queue management and prioritization for I-526 and I-526E filed since the Integrity Act. Nor does the announcement touch on I-829, which could likewise benefit from project grouping for adjudication. (See Ignacio Donoso’s brilliant idea: I-829X – A Proposal for Project Approvals for Job Creation Compliance.)

USCIS Update to Visa Availability Approach for Form I-526 (quoted as of July 18, 2023)

U.S. Citizenship and Immigration Services (USCIS) is announcing an update to the visa availability approach to managing the inventory of Form I-526, Immigrant Petition by Alien Investor. The visa availability approach applies to pre-EB-5 Reform and Integrity Act of 2022 Form I-526 petitions and prioritizes the assignment of such petitions for investors with an available visa or a visa that will be available soon. The USCIS Immigrant Investor Program Office (IPO) manages this Form I-526 petition inventory through workflow queues factoring in whether: a visa is available (or will be available soon) and the underlying project has been reviewed. Workflow queues are generally managed in first-in, first-out (FIFO) order when a visa is available or will be available soon. Effective July 2023, IPO will update this approach by grouping petitions by new commercial enterprise (NCE) with filing dates on or before Nov. 30, 2019, within the workflow queue of petitions where the project has been reviewed and there is a visa available or soon to be available, to gain greater processing efficiencies.

Purpose

The purpose of updating the visa availability approach is to enable USCIS to increase productivity and more efficiently process Form I-526 petitions. As described in more detail below, IPO will group petitions in the third queue by NCE with filing dates on or before Nov. 30, 2019, because adjudicators can process Form I-526 petitions more efficiently when they are working multiple petitions associated with the same NCE given the overlap in project documents and issues presented.

Updated Process Description and Rationale

Under the visa availability inventory management approach, IPO determines visa availability and queues up the Form I-526 inventory into three workflows on a monthly basis as discussed here (PDF, 238.48 KB).

The first queue contains Form I-526 petitions where a visa is not yet available and not soon to be available and is ordered first-in, first-out.
The second queue contains petitions related to projects that IPO has not previously reviewed and have a visa immediately available or soon to be available. IPO reviews projects in the second queue in order from oldest to newest.
The third queue contains Form I-526 petitions that have an available (or soon to be available) visa and either a reviewed project or “non-pooled” (single investor) standalone project. This queue is organized by receipt date of the Form I-526 petition (from oldest to newest). This is the queue from which Form I-526 petitions are assigned to officers for adjudication. Form I-526 petitions have generally been assigned to officers in first-in, first-out order.

The update to the visa availability approach is effective July 18, 2023. IPO will group petitions by NCE with filing dates on or before Nov. 30, 2019, within the third queue. These petitions will be assigned by NCE using a FIFO methodology, namely, by date of the earliest filed petition in that queue for each NCE. Given the large volume of petitions filed shortly before the EB-5 modernization rule had taken effect in November 2019 and because the project documents are often the same, assigning multiple petitions associated with the same NCE to the same adjudicator(s) will enable IPO to gain greater processing efficiencies, reduce the backlog and Form I-526 completion times, and support consistency and accuracy in adjudications, while maintaining fairness given the closeness in the filing dates of these petitions.

USCIS is committed to reducing its Form I-526 petition backlog and completion times and has determined that this update to the visa availability approach will help the agency achieve this goal.

Filed under Updates from USCIS

IPO is hiring! (Insights from job postings)

June 12, 2023 19 Comments

Post last updated: July 11, 2023

How and when will EB-5 processing improve? Good news: the USCIS Immigrant Investor Program Office is expanding its workforce. I am encouraged by the 21 alerts that I’ve received since August 2022 from USAjobs.gov for job openings at IPO, and to see that new job descriptions include words like “achieve efficiency,” “provide customer service,” and “respond to inquiries.” EB-5 processing times exploded in recent years primarily because IPO has had fewer people working less productively on EB-5 forms. Recent job postings provide hope that a larger staff and process improvements will eventually result in improved outcomes.

Job descriptions offer a view into the workings of an organization. They describe activities that the organization plans to undertake, reflect priorities, and provide insight into internal processes. They’re also helpful as a picture of the audience for EB-5 documents. As I write business plans to be reviewed by adjudication officers, it helps to know the officer’s qualifications, job description, and organizational context.

To facilitate analysis, I compiled and am sharing a compilation of IPO job postings in 2022/2023. My document lists all open positions during the past year, with duties and qualifications for each, and links to the original job postings (as saved in my files, since most are no longer live at USAjobs.gov). You’re welcome.

For this post, I’ll comment on a few questions that can be addressed with reference to recent job postings.

What are IPO’s growth plans and priorities?

Hiring in 2022/2023 shows that IPO is pursuing plans to increase the number of adjudicators, improve records management, explore process efficiencies, formulate new policies and procedures, respond to more inquiries, and address regional center compliance.

Job descriptions in 2022/2023 show that “integrity” remains a dominant value at IPO, with adjudicator job duties and qualifications focused on fraud detection and prevention. However, the words “efficiency” and “productivity” also appear several times, and four positions even include “customer service” among the required competencies.

What change can we expect from IPO?

If the job duties described in the 2022/2023 IPO job postings are actually performed, then we can expect a number of developments.

We will have policy for regional center compliance. (This promises to take time, since the three positions responsible to oversee and supervise regional center compliance and develop regional center compliance policy are all newly recruited in the past six months. But at least job postings show wheels in motion.)

IPO will have a wealth of recommendations for operating procedures. Eleven of the advertised positions include this among the job duties. Also, a vast quantity of research will be generated and turned into internal reports and briefings that may eventually translate into improvements. I’m particularly cheering for the Management and Program Analyst tasked “to improve productivity and increase the quality of work directed.”

IPO will have a better handle on its records and be better able to make reports and respond to inquiries. Five of the advertised positions are primarily occupied with records management. These positions might be needless if only IPO had halfway decent IT and database systems, but expensive humans are better than nothing.

Customer service may marginally improve. IPO has recruited one person for an “inquiry management unit” tasked to “resolve customer and organizational issues including applying and interpreting advanced knowledge of immigration laws, regulations, and policies using USCIS systems and mailboxes” – which sounds like it should mean more than repeatedly cutting and pasting “Good afternoon, Your inquiry has been forwarded for review, Thank you,” as the current mailbox staff does. IPO has also recruited for several staff devoted to FOIA requests, and for a quality manager whose duties include “providing customer service to internal and external customers.”

IPO’s in-person office – the one that’s apparently hardly used since all employee positions are telework eligible – will be nice and secure thanks to two new employees who will make over $100,000 a year each to manage physical security, facilities planning, fleet management, and health and safety.

What’s missing in the 2022/2023 IPO job postings? What’s unlikely to change, according to the job postings?

The newly-staffed IPO promises no more real world experience and no more legal or financial expertise than it has today. None of the advertised positions asked for any educational qualifications in immigration law, securities law, business, or finance. None asked for experience with business or investment. The only position with any educational qualification was Economist, and even that could satisfy the math component with three semester hours of calculus. With the exception of a low-level clerical position, none of the positions posted was open to the public. Many jobs were posted as open exclusively to current USCIS employees, and all (except the secretaries) were limited to current or former federal employees, with some flexibility for veterans, military spouses, and Peace Corps. USCIS is taking care to protect the ivory tower of IPO from practical EB-5 experience or industry involvement. “Organizational awareness” was explicitly mentioned as a required competency in some job descriptions, and a clear priority throughout. IPO is evidently not trying to bring a bit of Commerce, the Small Business Administration, or the SEC under the USCIS umbrella, though that would help to handle the investment component of immigrant investment. USCIS is evidently still only trying to be itself – an agency that grants immigration benefits and hires specifically for experience with applying and enforcing immigration law. This fact limits how much sophistication or effectiveness we can expect from IPO when it comes to evaluating EB-5 investor petitions or overseeing the regional center industry.

EB-5 Reform and Integrity Act implementation does not dominate recent IPO job postings. IPO advertised a “few” vacancies for adjudicators to judge regional center applications, and for three managers to work with regional center compliance. But generally, the advertised job openings are not obviously specific to new processes or requirements associated with RIA. There’s no evidence in the job postings that IPO is creating new divisions specific to the new EB-5 forms, or significantly increasing policy staff. At best, this lack might mean that USCIS has already reallocated existing experienced staff to handle new RIA tasks.

IPO organization has been heavily weighted with administrative and ancillary staff. As of October 2022, IPO reported 216 employees, of which about 40 were assigned to I-526 and 35 to I-829, while the remaining 65% of EB-5-fee-funded employees bustled about doing things other than adjudicate investor petitions. New job postings likewise offer plenty of non-adjudicative work. IPO is not quite the hospital with 300 busy administrative staff and no doctors or medical service as described in Yes Minister, but it’s on the spectrum. In theory, IPO exists to process EB-5 forms, just as a hospital exists to heal the sick. In practice, IPO processing output has been very low for an office with 200+ employees mostly earning $100,000+ per year each. I hope that in the future, we will increasingly see IPO employees and job duties involved with adjudication.

Overview of job openings at the USCIS Investor Program Office September 2022 to the present (See my compilation document for detail and links to the original job postings. Note that I will continue to update this document as I am alerted to additional job postings.)

Position title	Job Posting	Primary duty
Management and Program Analyst	Two vacancies posted June 2023	Administrative support: asset management, facilities
Auditor	“Few” vacancies posted June 2023	Enforcement: Audit regional centers
Program Manager	1 vacancy posted June 2023	Administrative support: provide financial, human capital, and administrative oversight
Program Manager	1 vacancy posted June 2023	Adjudication Support: Oversee adjudications
Adjudication Officer	“Many” vacancies posted March 2023 and May 2023	Adjudication: Grant or deny petitions
Adjudication Officer (Regional Center)	“Few” vacancies posted January 2023	Adjudication: Grant or deny regional center applications
Adjudication Officer (Quality Assurance)	1 vacancy posted January 2023	Adjudication support: Review adjudicative decisions
Economist	“Few” vacancies posted May 2023	Adjudication support: Conduct and apply economic research
Supervisory Adjudication Officer	1 vacancy posted December 2022	Adjudication support: Supervise adjudicators
Adjudication Officer (Inquiry Management)	1 vacancy posted June 2023	Customer service: Oversee and resolve case inquiries
Immigration Services Analyst	“Few” vacancies posted May 2023	Customer service: Handle FOIA request response
Program Manager (Compliance)	1 vacancy posted December 2022	Policy: Oversee the development of policies for regional center compliance.
Supervisory Adjudication Officer	1 vacancy posted January 2023	Policy: Supervise a team responsible for developing policy, serve as subject matter expert
Supervisory Adjudication Officer	1 vacancy posted April 2023	Policy: Oversee the division developing regional center compliance.
Management and Program Analyst (Quality)	2 vacancies posted January 2023	Administrative support: Analyze processes to improve productivity and increase quality.
Management and Program Analyst (Data)	1 vacancy posted June 2023	Administrative support: Work on data integrity and process improvements
Supervisory Records and Information Management Specialist	2 vacancies posted October 2022	Administrative support: Provide direction for records and information management
Immigration Services Analyst	3 vacancies posted June 2023	Administrative support: Work with records (handling data, project management)
Immigration Services Analyst: Office Automation	“Many” vacancies posted September 2022	Administrative support: Clerical duties
Supervisory Management and Program Analyst (Facilities)	1 vacancy posted September 2022	Administrative support: Work on facilities and physical plant issues
Management and Program Analyst (Facilities)	1 vacancy posted December 2022	Administrative support: Work on facilities and physical plant issues

Filed under Updates from USCIS

An Open Letter to Kevin Muck at IPO about I-526 data and avoiding EB-5 backlogs

April 25, 2023 37 Comments

*******************************

Dear Kevin Muck,

You introduced yourself in the October 2022 EB-5 stakeholder meeting as I-526 Division Chief at IPO, with ten years of experience as an IPO economist preceded by eight years of service at the Bureau of Economic Analysis.

With your background and status, you should be capable and informed about the EB-5 process. But you said something ignorant and dangerous in today’s EB-5 stakeholder engagement.

A question was asked about reporting I-526/I-526E receipt data by TEA category/country, for the purpose of monitoring and avoiding backlogs in the new TEA categories. You responded that stakeholders should consult the Visa Bulletin, and see that the current Visa Bulletin reports TEA categories as “current.”

Think about it, Kevin. Do EB-5 backlogs not exist until they appear at the visa stage/in the visa bulletin? Do you believe that someone filing I-526E today gets visa availability based on the dates in today’s Visa Bulletin?

If you think that, try to look in the face of an Indian who filed I-526 in December 2020, and say “You didn’t need to know about the 2,300+ other Indian I-526 we already had on file at USCIS in December 2020, but didn’t disclose except through FOIA years later.” Try to tell him: “The December 2020 visa bulletin when you filed I-526 said that India EB-5 was current so obviously you were good to go — no backlog for you to worry about when you invested! The visas available to India back when you filed I-526 must still be available to you now, right? Oh… wait… you can’t actually apply for a visa now because India EB-5 now shows as backlogged to mid 2018 in today’s visa bulletin. But how could anyone have guessed? Those visa bulletin dates appear out of nowhere! Surely nothing to do with the number of Indians who filed I-526 in 2018/2019, or our rate of adjudication! Surely IPO was right to ignore Suzanne when she wrote over and over to the IPO Customer Service Mailbox, begging for backlog-relevant I-526 data to enable backlog/wait time prediction! Why would anyone need to ask how many people are entering and lingering in the back of the queue at USCIS, when the Visa Bulletin reports conditions just fine at the terminus of the queue at Department of State?”

Think about it: in a situation where unlimited tickets can be sold for limited seats, why might prospective ticket buyers possibly want to inquire about how many tickets have already been sold?

In a situation where I-526 filing numbers turn into future priority dates for visa issuance, why might anyone possibly want to ask about filing numbers? Do you say — sorry, just wait ’til you all reach the visa application stage and then find out from the visa bulletin?

Kevin Muck, think about today’s prospective investor from China who is considering EB-5 investment with a rural project. With the 20% rural allocation and 7% country cap, that investor can count certainly on competing for one of about 140 visas per year (about 10,000*20%*7%) – anything above that depends on the unknowns of current/future rest-of-world demand and carryover timing. With such limited availability, why might that prospective investor want to know how many Chinese have already filed I-526 for rural projects, whether 80 or 800? Why could that prospect want timely data to show whether/when I-526 volume overall is sufficient to max out the category and activate country caps once the demand reaches the visa stage? Why might she want the receipt data necessary to estimate whether the rural queue already formed at the I-526 stage is of a size to take two years or 10 years to make it past the visa window? And it’s not only investors who want to estimate their investment and immigration horizon at the time of investment — issuers and projects and regional centers require this for their planning as well. And the government also has an interest.

Think about it: what’s the word for soliciting investment with an incentive that might not actually be available? When the U.S. government offers an investor visa incentive, at the same time making it impossible for the investor or issuers to estimate visa availability at the time of investment, I’d call that fraud by the government. It rests on IPO to keep the U.S. government out of such embarrassment by reporting on the I-526 filings that drive EB-5 visa demand and availability.

I have requested this so many times from USCIS, but I know your name and your face now, Kevin Muck, and the size of your salary, and I appeal to you personally. Now that you’ve applied your economist brain to the situation and realize the importance of this data for program integrity, please help make it happen! Here is the report that we need to have USCIS start publishing, at minimum quarterly and at minimum with data no less than three months old. (Even better if we can get monthly reports with data only one month old, but truly anything will be an improvement over current blank silence. USCIS already provides monthly reporting internally to the visa bulletin working group, so adding public reporting should not be a great reach.)

Number of I-526 receipts by country and category for the period ______
	Rural TEA	High Unemployment TEA	Infrastructure TEA	Unreserved
All countries
China
India
Vietnam
Mexico

*Note: It seems that we need only these countries in the report, since the Federal Register notice RIN 1400–ZA27 clarified that the per-country limit is only triggered when demand exceeds 7% of all FB and EB visas. Which historically means that only China, India, Vietnam, Mexico, Philippines and Dominican Republic are in the country cap danger zone overall, and the last two can safely be disregarded for this report since they’ve never been remotely significant in EB-5.

That’s all for now Kevin. Thank you for putting yourself out to be faced with challenges like these. I depend on you to talk USCIS out of its practice of concealing I-526/I-526E filing information.

Sincerely,

Suzanne

(For more background and explanation, see also AIIA’s well-researched article How does the Visa Bulletin Work? And for such EB-5 demand data as I have managed to collect by hook or by crook, see my regularly updated Processing Data page and the Excel file I keep linked to the top of my EB-5 Timing Page.)

Filed under EB-5 Statistics

April 25, 2023 Stakeholder Engagement

April 25, 2023 6 Comments

The April 25, 2023 “EB-5 Stakeholder Engagement” had a Microsoft Teams webinar format, with IPO staff speaking on video and a chat box where the public had a chance to type questions viewable to admins only. I cannot disprove the hypothesis that all of us were sitting there watching pre-recorded video, and typing questions into the void.

The engagement managed to fill 1.5 hours with exactly no significant content. I won’t publish a recording. The meeting was 95% technical clarifications on Form I-956K – the regional center promoter registration form that functions to feed paper to the black vaults of USCIS, which neither adjudicates the form nor (at least so far) makes it actionable by divulging form compliance or non-compliance to prospective/current investors or regional centers. If USCIS cares about Form I-956K and the additional instructions and technical clarifications that they provided on today’s call, then they can publish said instructions and clarifications somewhere findable by the public. USCIS announced that no transcript or talking points would be provided for today’s call. I will not waste time transcribing information that USCIS apparently does not consider reliable enough to record or publish themselves.

Alissa Emmel kicked off today’s engagement by announcing that speakers would not address two significant issues that the engagement was called in January 2023 to address: the critical questions of investment period (“the new requirement under the EB-5 Reform and Integrity Act of 2022 (RIA) that capital must be expected to remain invested for at least two years”) and regional center operations (“in particular those who wish to withdraw from the program and terminate their status and those who do not wish to solicit investments for new projects under the RIA”). Both of these issues are hugely consequential. USCIS’s answer on the investment period will make the difference between whether Chinese, Indians, and Vietnamese who risk an EB-5 investment today can expect to exit the investment after as little as two years (the artificial sustainment period apparently in the Reform and Integrity Act) or as long as over a decade (the time it could take investors to reach the I-829 stage considering current processing time/volume trends and the visa backlog risk in categories with small per-country visa availability under TEA percentages and country caps). Regional centers who love the profits of redeployment and investors who hate the risks of redeployment both snowed USCIS in conflicting passionate feedback on this topic. (For example see IIUSA’s letter here, the joint industry letter here, and AIIA’s letter here.) I’m guessing that USCIS first delayed the stakeholder meeting (originally scheduled for March) and then finally avoided the topic today because they’re rationally afraid that whatever they say about the investment sustainment period will immediately occasion a lawsuit. The Regional Center operations questions are less divisive among EB-5 stakeholders, but a huge open question with USCIS. Are thousands of good faith investors about to start seeing their I-526 and I-829 denied and their residence status revoked through no fault of their own, and for no fault in the investment or job creation, but simply because their good faith regional center sponsor decided to go passive (instead of choosing to solicit new investment under the Integrity Act, with compliance steps specifically relevant to soliciting new investment)? It’s dreadful that this question remains open.

In addition to avoiding two of the three agenda topics previously announced for the engagement, the IPO speakers also provided no update on IPO operations or staffing, no update on form processing or procedures, and no estimated delivery dates for the many initiatives IPO ought to have in hand, including policy publication, regulations, timely processing study, website updates, or digitization. At the same time, the speakers all put on a good face, as if they believed they were doing a good job, engaging substantively, and answering questions. Surely it’s not possible to be that clueless and incompetent? Could I at least have the hope of believing that today’s non-engagement was an act of intentional malice by people who know what they’re doing? Or maybe we and the IPO speakers on today’s call are equally victims of a system that paralyzes communication by subjecting every decision and talking point to a thousand steps and checks.

Filed under EB-5 Events

RIA Implementation Status, one year later

March 15, 2023 6 Comments

On March 15, 2022, the EB-5 Reform and Integrity Act of 2022 (RIA) became law as part of the Consolidated Appropriations Act, 2022 (Public Law No: 117-103). One year later, how far have we come? How much of the law has been implemented?

The following bullet points give status as of March 31, 2023 for steps that need to be taken to implement RIA.

Updating policy, forms and guidance based on the new law

USCIS Policy Manual: Incomplete. On October 7, 2022, USCIS updated only the introductory Chapters 1-2 of the Policy Manual EB-5 section 6G, while EB-5 Chapters 3-6 remain untouched. The chapters still still not updated with RIA-compliant policy cover I-526 adjudication, I-829 adjudication, and regional center designation and reporting requirements.
USCIS website: Incomplete. Some new EB-5 content has been added to the USCIS website over the course of the year, and some outdated content remains in the mix. It’s still impossible to go to the USCIS website to find out which regional centers are approved or active under the new law.
EB-5 forms: In Process. All EB-5 forms required by the new law have been published or revised but remain subject to change. (Indeed, new versions of all I-526 and I-956 were just published today.) USCIS has yet to respond to (and for I-956, even to post) the second round of public comments to the Federal Register on I-526E and I-956.

Prescribing regulations required by the new law

Regulation for parameters on capital redeployment: Not done. (RIA does not state a deadline for this regulation.)
Regulations prohibiting foreign involvement in a regional center: Not done. (The RIA deadline, 270 days after the date of enactment, has passed.)
Regulation to ensure that EB-5 capital is not used on publicly available bonds: Not done. (RIA does not state a deadline.)

Monitoring and enforcing regional center compliance with new requirements

Clarify how RIA requirements apply to previously-approved RCs not active under RIA: Not done. The EB-5 stakeholder meeting previously scheduled for March 20, then delayed to April 25 is slated to address this question. (UPDATE: The April 25 meeting did not after all address expectations for regional centers with pre-RIA but not post-RIA investors.)
Review and approve regional center compliance procedures: Status Unknown. USCIS has not reported any decisions on I-956 Regional Center Applications. (We hear anecdotally about approvals received, but USCIS does not report I-956 approvals or denials on the USCIS Regional Center page or the USCIS Immigration and Citizenship data page.)
Vetting and background checks of persons involved with regional centers: Status Unknown. USCIS has not reported any decisions on I-956H forms.
Review Regional Center Annual Statements and Certifications: Not done. Form I-956G were not filed for 2022 because “USCIS is extending this deadline until we publish guidance that clarifies the requirements of these forms.” Such guidance has yet to be published.
Review regional center projects: Status Unknown. USCIS has not reported any decisions on I-956F Applications for NCE approval.
Review registrations by direct and third party promoters: Status Unknown. USCIS has not reported any decisions on I-956K registrations, and has not made any lists publicly available.

Implementing visa availability changes

Reshuffle visa availability to reserve visas for new TEA investment: In process. The Visa Bulletin and Annual Report of the Visa Office show new visa categories as required by RIA. Zero reserved visas were issued in FY2022, due to slow USCIS processing.
Carryover of unused reserved visas: In process. The FY2023 Annual Limit report says cryptically “The employment chart (above) does not include numbers carried over from the previous fiscal year in the EB-5 category.” (UPDATE: the April 26, 2023 DOS/AILA Liaison meeting (question 22) confirms intent to carry over visas.)

Other requirements

Timely Processing Fee Study: Not done. (RIA gave a deadline of 1 year from the date of enactment to complete a study of fees levels required to achieve timely processing goals, and this study has yet to be published. The USCIS Fee Study does not address timely processing for EB-5.)
Announce appropriate channels of communication: Done. The bottom of the EB-5 Support page has been updated with Channels of Communication.
Publish Log of communications: Not done. The FOIA page for USCIS does not show a log of communications with Congress regarding EB-5.
Transparency regarding Publication of Information: Mixed. (For example, we know that USCIS is having court-ordered quarterly meetings with litigation plaintiffs. So far one set of meeting minutes has been published, and publication happened more than 30 days after the meeting.)

FY2022 Annual Report of the Visa Office for EB-5 visas issued by country

March 6, 2023 46 Comments

The Department of State has finished publishing its Report of the Visa Office 2022. The report covers EB-5 visas issued from October 2021 to September 2022, with breakdown by country of origin, path (consular processing or status adjustment), and category (direct, regional center, TEA, reserved, unreserved). I’ve been waiting anxiously for the report, wondering about visa wastage, Integrity Act implementation, and impacts on the visa backlog and EB-5 visa wait times for China, India, and Vietnam.

This post comments on highlights, followed by data tables summarized from the reports.

FY2022 EB-5 Visa Issuance and Wastage

USCIS actually issued 10,885 of the unusually-high 19,987 EB-5 visas available in 2022. Of the 9,102 EB-5 visas that didn’t get issued in FY2022, 6,396 couldn’t have been issued because segregated in newly-created set-aside categories. (The unused set-asides should carry over in future years, though the FY23 visa limits report doesn’t show the carryover.) The remaining 2,706 unused EB-5 visas in FY2022 were permanently lost to EB-5. (FY2022 is still much better than FY2021, when EB-5 lost 15,673 total visas, and FY2020, when EB-5 lost 7,498 visas.)

Visa wastage particularly affected countries with mostly regional center applicants using consular processing. For example, South Koreans got 695 EB-5 visas in 2019 (the most recent “normal” year) but only 396 visas in 2022 (86% by consular processing), despite the fact that 909 South Korean EB-5 applicants were ready and registered at the National Visa Center at the start of 2022. Hong Kong likewise suffered, with only 142 EB-5 visas issued in FY2022 despite 866 Hong Kong applicants ready at NVC at the start of the year. Meanwhile Indians, many adjusting status in the U.S., managed to get a record 1,381 visas in 2022 – even more than technically available to them under the year’s unreserved visa limit.

Reasons for FY2022 EB-5 Visa Wastage

EB-5 visa issuance in FY2022 was as low as it was largely due to the unfortunately protracted regional center program expiration, and the policy that prevented visas from being issued to regional center applicants from October 2021 to May 2022. (I wish that policy could be litigated on behalf of the over 18,000 EB-5 visas lost during the expiration.) Monthly visas statistics show that all regional center visas issued in FY2022 were packed into just four months: June to September 2022.

The government had the entire year to issue direct EB-5 visas, but only issued 621, likely constrained by low demand (i.e. few direct I-526 filed and even fewer making it through I-526 processing to the visa stage). By comparison, 414 direct EB-5 visas were issued in the last normal year of FY2019.

Consular processing numbers were also depressed overall compared with FY2019, reflecting on-going struggles with post-COVID backlogs. For color on why the steps in consular processing remain so slow and problematic, see questions and answers in the Department of State/AILA Liaison Committee Meeting February 9, 2023, the NVC Immigrant Visa Backlog report (look at trends in the number of interview appointments, and compare appointment volume with backlog size), and the October 2022 Update on Worldwide Visa Operations. Those in or approaching consular processing should be aware of the NVC Timeframes page, with information on process status and times. The bright side is that consular problems affect not only EB-5 but also family-based visa issuance, and EB-5 benefits in 2023 from a share in FB visas that went un-issued in 2022 (as reflected in 2023’s unusually high EB visa limit).

High Volume of EB-5 Status Adjustments in FY2022

EB-5 visa issuance in FY2022 was as high as it was thanks to an unprecedented high number of status adjustments (37% of the total, as compared with 17% in 2019). For example comparing 2022 with 2019 visa issuance, China got fewer visas last year through consular processing but five times as many visas through status adjustment.

The unusually high AOS numbers reflect the fact that USCIS got political pressure and made herculean efforts at the end of FY2022 to step up work on employment-based status adjustments, even as consular processing continued to struggle post-COVID.

Direct EB-5 (and the visa bulletin even briefly becoming Current for China direct EB-5) did not contribute much boost. China ended the year with only 199 direct EB-5 visas issued – not much higher than usual, and not explaining the unexpected thousands of Chinese who adjusted status in 2022.

RIA Implementation, Reserved Visas, and Country Caps

Report of the Visa Office 2022 does segregate EB-5 visas into “5^th Unreserved” and “5^th Set-Aside” categories, reflecting changes to visa availability made by the EB-5 Reform and Integrity Act enacted March 15, 2022. Of course, no visas were issued in 2022 in the “5^th Set-Aside” categories, since no applicants who filed I-526 after March 15, 2022 could have reached the visa stage in time. And according to Department of State interpretation, all EB-5 applicants with pre-March 2022 priority dates can only now qualify for a visa in the new 68% unreserved category, regardless of whether they invested in a TEA that matches new definitions. (I think this interpretation can and ought to be challenged, at at least one lawsuit by DRVC is challenging it, but it’s the fact for now.)

In theory, country caps further restrict availability within each category. Thus pending applicants from any one country can only expect up to 7% of the 68% unreserved EB-5 visas (with “otherwise unused” unreserved numbers going to the oldest priority dates i.e. Chinese).

In 2022, this theory held true for Vietnam but not for India. While both countries have excess demand for unreserved visas, and large NVC backlogs, the government in fact issued 815 EB-5 visas to Vietnam (about 7% of unreserved EB-5 visas) and 1,381 EB-5 visas to India (about 7% of total EB-5 visas). Hmmm…

Was this different treatment of Indians and Vietnamese an oversight, with the government remembering the unreserved limit in the new law for Vietnam while forgetting it for India? 2022 was naturally confusing for the Visa Office, which had to deal with a mid-year law change and leadership change. Or did many Indians get lucky just because they happened to be in the US, unlike most Chinese and Vietnamese EB-5 applicants with earlier priority dates? I wonder if maybe Indians got assigned “otherwise unused” numbers at the end of the year that should’ve gone by right to earlier Chinese priority dates, but practically couldn’t because the consulate in China lacked capacity to hold more interviews in time while the California Service Center had capacity to complete more I-485 and help avoid wastage. (I also wonder if a difference between consular and USCIS capacity to issue visas at the end of the year could explain the unusually high number of Chinese regional center applicants who were able to adjust status in FY2022 — more applicants than one would expect from priority date order.)

Country Diversity

FY2022 was similar to previous years in terms of countries claiming the most EB-5 visas. As in 2019, the top users in 2022 were (in descending order): China, India, Vietnam, South Korea, Brazil, and Taiwan. Meanwhile, Mexico, Canada, Russia, and Iran moved a few notches up the list in 2022, while Venezuela, South Africa, Great Britain, and Japan moved a few notches down. I was surprised mainly by the number of Canadians on this year’s list (why, Canada?) and Iranians (considering the often arduous source of funds path).

Visa Demand Context

For a reminder of the size of the visa queue before FY2022 visa issuance, see the presentation by Charles Oppenheim for IIUSA in November 2021. At that time, Oppenheim estimated the EB-5 backlog (including applicants already registered at NVC and potential future applicants associated with I-526 pending at USCIS) at 57,253 visa applicants for China, 7,418 for India, 3,954 for Vietnam, and 18,054 for other countries (see Slide 10).

Visas issued in 2022 reduced those queues by 6,125 visas to China, 1,381 visas to India, and 815 visas to Vietnam. (I assume that I-526 filings in 2022 didn’t grow the queues very much, unless it turns out that most of the 829 receipts last year came from Indians).

The future wait times associated with that scary queue depend on (1) how many petitioners/applicants in the queue will ultimately give up/lose eligibility before they can clam a visa (likely a large number given the untenable wait times looming for Chinese and Indians near the end of the queue), and (2) how many EB-5 visas will be issued per year from now on, with the base case being 9,940 EB-5 visas * 68% unreserved * 7% country cap = up to 473 to applicants of each country. The actual number of visas available per-country in a given year can be significantly higher than the 473 base case based on carryover of family-based visas (as happened in FY2022 and happening again in FY2023 due to COVID-19), carryover of reserved visas (as should happen in 2024 and 2025 assuming law compliance and continued slow I-526 processing), and unreserved visas leftover after country caps (which should increasingly benefit China in coming years). But even with the most optimistic assumptions on future visa availability, Chinese who filed I-526 from October 2016-March 2022 and Indians who filed I-526 from November 2019-March 2022 could face five or more years of waiting just for conditional permanent residence. Or would face that wait, except that it exceeds what many applicants (not to mention their RCs, projects, and investments) can practically bear, predictably leading to many queue-shortening drop-outs/failures. Meanwhile, new investors in reserved categories have to sweat over limited availability (with just 20%, 10% or 2% of visas available in each new lane, further restricted under the 7% country cap) and guessing the time for I-526 filings to invisibly build and max out that limited availability. I’ll write more about unreserved and reserved visa availability and wait time issues in separate articles.

The bottom line is that EB-5 suffers from a supply problem. EB-5 needs more visa numbers in order to accomplish what regional centers, investors, and public policy all require: a stable and predictable immigration opportunity that can accommodate new investors plus prevent a despairing rush for the exits for past investors/investment.

Tables based on the Annual Report of the Visa Office

Filed under EB-5 Statistics

EB-5 Integrity Fund FAQ, with notes on regional center status and investment period

March 1, 2023 7 Comments

Today, USCIS sent out an email alert with the title USCIS to Start Collecting Fee for EB-5 Integrity Fund, published a new EB-5 Integrity Fund page on the USCIS website, posted a Federal Register notice with information about the Integrity Fund, and created a new page for EB5 – Annual Fee for Regional Center at Pay.gov.

We’ve known that annual regional center fees were coming, since Section 103(b)(J) of the EB-5 Reform and Integrity Act (RIA) created this new requirement. But we’ve been waiting for USCIS to clarify questions around the fee, including how and when to pay it, who qualifies as the “each regional center designated under subparagraph (E)” who needs to pay the fee, and who counts as “investors in the preceding fiscal year in its new commercial enterprises” for the purposes of calculating how much to pay.

Here are answers gathered from the documents published today by USCIS.

Who needs to pay the new EB-5 Integrity Fund fee, and when?

USCIS interprets RIA to mean that every regional center, regardless of when designated and regardless of when or if it sponsored investors, needs to make its annual Integrity Fund payment of $10,000 or $20,000 to USCIS between tomorrow and March 31, 2023. The fee due this month will apply to FY2023. (The next annual fee, for FY2024, will then come due in October 2023.) The Federal Register notice indicates that USCIS expects that all 630 previously designated regional centers will pay the fee, including those with no investors at all. The announcements give no indication that USCIS considered exceptions for regional centers that were not designated under the new law and do not have investors under the new law.

What does the USCIS fee policy imply about USCIS treatment of previously-approved regional centers?

The fee policy apparently takes for granted that when RIA created a fee requirement applicable to “each regional center designated under subparagraph (E),” RIA did not actually specifically mean RIA subparagraph (E), but also the 1993 law Section 610.

USCIS has yet to designate any regional centers under subparagraph (E) by approving I-956 applications. An unknown number of previously-approved regional centers have filed I-956 and chosen to solicit investors under RIA. This creates a grey area for the many regional centers that were only approved and only raised investment under the old law. USCIS admitted as recently as October 2022, in meeting with the litigation plaintiffs, that “USCIS has not determined what will happen to regional centers that choose not to file Form I-956” and “whether any of the RIA requirements apply to them.”

But whoever drafted today’s USCIS fee policy did not recognize a grey area. The policy simply assumes, without argument or explanation, that new requirements applicable to regional centers designated under RIA also apply to regional centers previously designated under Section 610 of the Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations Act, 1993. The drafters of the fee policy apparently did not consider the arguments in my Comment on the RIA impact on pre-RIA Regional Centers and investors.

What will happen to any regional center that does not pay the EB-5 Integrity Fund fee by March 31, 2023?

On May 31, 2023, USCIS will start to send out Notices of Intent to Terminate to every regional center whose fee was not received on-time. (For some RCs, the NOIT may be the first they hear about the fee requirement. USCIS explained that today’s publications will be the only notice, and that USCIS will not individually notify or send invoices to regional centers.) A regional center’s designation will be terminated following the NOIT, unless the regional center can document that it did indeed submit the full required fee amount by the deadline of March 31, 2023.

The termination threat is a concern primarily because the new law defines devastating investor consequences from regional center sponsor termination (as further discussed in my previous post). INA 203(b)(5)(M) stipulates that I-526 petitions will be denied and even conditional permanent residence status terminated upon regional center termination. And the escape route offered in (M) is only theoretical, since USCIS permission is no guarantee that a good faith investor or NCE can – in fact – have a viable option to associate with another regional center. The termination consequence places great weight on today’s fee announcement.

What is the required amount of the EB-5 Integrity fee? What does the fee policy imply about who’s an investor, and what’s the investment period?

RIA states that the required fee for a regional center depends on the regional center’s number of investors in the previous year – with the $20,000 annual fee reduced to $10K for “each such regional center with 20 or fewer total investors in the preceding fiscal year in its new commercial enterprises.”

But who counts as “investors in the preceding fiscal year” for the purpose of fee calculation? The statutory language could justify a reading as limited as “people who invested and filed I-526/I-526E in the previous fiscal year under RC sponsorship” to as broad as “people at any immigration stage whose investment was still in some sense under RC custody in the previous fiscal year.” The USCIS fee policy published today in the Federal Register presents this reasoning:

A possible interpretation of “investor” is “someone still in the investment period”
“Investment period” means the period from I-526 filing through the point of I-829 filing, on the authority of a 2021 blog post by Canadian financial professional Rupy Cheema of EB5 Diligence. (I don’t know whether to laugh or cry at this evidence that the USCIS Office of Policy and Strategy was apparently not sweating over statute, regulations, or precedent decisions or its own Policy Manual but just casting about the Internet to find a policy for the EB-5 investment period, but props to EB5 Diligence for catching OPS’s eye and earning the footnote citation in the Federal Register notice!)
Since Rupy said in 2021 that the investment period goes approximately from I-526 filing to I-829 filing, and since USCIS has ready data for number of I-526 and I-829 filings while other calculations would be hard, therefore USCIS intends to estimate “total investors in the preceding fiscal year in its new commercial enterprises” as equal to the total number of pending and approved I-526 at year-end less the total number of I-829 filed at any time by principals. With the qualification that “USCIS adjudicators retain discretion to evaluate the Integrity Fund fee due and the number of investors on a case-by-case basis, accounting for any other facts or evidence in the record in the totality of the circumstances, including any evidence provided by a regional center that believes it has greater or fewer total investors.”

This is a sober recital of the content of the Federal Register notice. What can we expect next from the Office of Policy and Strategy?

Everyone involved in the huge fight over defining the “investment period” (on the regional center side and investor side) will be interested in this paragraph from the Federal Register analysis:

“USCIS considered generally counting only the Forms I-526 that were filed within two years of the applicable period used for determining the EB-5 Integrity Fund fee given the expected two-year minimum timeframe for the investment, or sustainment period, under the 2022 Act. INA section 203(b)(5)(A)(i); 8 U.S.C. 1153(b)(5)(A)(i). However, that would likely be underinclusive given that many investors are actively in the process of investing (i.e. not yet fully invested) when they file their Form I-526 petition as permitted under applicable requirements and, additionally, would not align with the sustainment period for those who filed prior to the 2022 Act, which runs approximately to the point of the Form I-829 filing, regardless of when they filed their Form I-526 or made their investment.”

Do we have a chance to provide feedback on the fee policy?

The Federal Register notice states that “USCIS is imposing this fee without soliciting public comment prior because this is a general statement of policy and an interpretive rule exempt from notice and comment procedures.” The notice claims that “The statutory provision that requires the $20,000 and $10,000 fees contains little ambiguity for USCIS to resolve or explain.” (And this, after the notice grappled with ambiguities around the investor count and overlooked the major ambiguity of regional center applicability.) I will update this post if I learn of a chance to respond with questions and concerns.

Filed under EB-5 Law & Policy

RIA impact on pre-RIA Regional Centers and investors (comment)

February 10, 2023 1 Comment

The following is the comment related to Regional Center Operations that I submitted to USCIS in advance of the EB-5 engagement on March 20, 2023. (The comment deadline is 4 ET today.) I approached the question theoretically, and would love to hear more input from regional centers and investors who are personally affected. How can we best navigate the threat of termination and the burden of how to operate and maintain investor eligibility since passage of the EB-5 Reform and Integrity Act? (Note that the table below only reflects my interpretation/suggestion to USCIS. I do not know what policy USCIS will create or how USCIS will interpret and apply RIA.)

From: Suzanne Lazicki <suzanne@lucidtext.com>
Sent: February 10, 2023 8:44 AM
To: ‘public.engagement@uscis.dhs.gov’
Subject: Question: EB-5 Engagement March 20, 2023

Regional Center Operations: We will discuss issues related to regional center operations, in particular those who wish to withdraw from the program and terminate their status and those who do not wish to solicit investments for new projects under the RIA.

Comment

Regional centers that do not wish to solicit investments for new projects under RIA may and should still wish to retain their designation, for the sake of protecting their pre-RIA investors. Not that RCs have much practically to do for in-process past investors; the issue is that INA 203(b)(5)(M) now defines devastating investor consequences from regional center sponsor termination. (M) stipulates that I-526 petitions will be denied and even conditional permanent residence status terminated upon regional center termination. The escape route offered in (M) is only theoretical, since USCIS permission is no guarantee that a good faith investor or NCE can – in fact – have an option to associate with another regional center. Such an option depends on real-world factors outside the investor’s or USCIS’s control, including the existence of another regional center willing to take the burden under livable terms, a willingness by the terminated entity to transfer sustained investment to the sponsorship of a new RC, and documents that practically allow for such a switch. Investors originally sponsored by bad actor regional centers may be thankful for a prospect – however slim – to change sponsors upon USCIS termination. But the risky, uncertain prospect is hardly solace or protection for investors who already have a good sponsor responsibly managing their investment.

If USCIS starts to terminate regional centers for no fault except declining to raise new funds under RIA, the result will be loss of eligibility among EB-5 investors due to RIA – an outcome that RIA sought to avoid in principle with Section 108 Protection from Expired Legislation.

Regional centers wishing to retain designation for the sake of shepherding pre-RIA investment and projects, not for the purpose of soliciting new investment, could reasonably be held to RIA requirements that apply to shepherding investment, and not held to RIA requirements specific to soliciting investment.

Practically, this means that shepherd regional centers should continue to report on their management of EB-5 investment and be subject to penalties for reasons related to fund management, but should not have to file I-956 and I-956F, or to complete the portions of I-956G that are indexed to I-956 and I-956F and to requirements specific to capital raising activities.

The following table considers which requirements created by RIA are specific to raising and deploying EB-5 investment, and thus naturally not applicable to RCs/NCEs that raised and deployed EB-5 funds prior to RIA and will not continue such activity after RIA.

Table 1. Applicability of RIA requirements to Regional Centers not sponsoring new investors or projects under RIA

Section of INA 203(b)(5)	Comment on how this requirement should apply to regional centers not sponsoring new investors or projects under RIA
(E)(iii) Establishment of a Regional Center, regional center proposal	Not applicable. As clarified by the Settlement Agreement in the Behring litigation, the requirement to apply for regional center designation with I-956 is specifically “for the purposes of sponsoring new projects and new investors under the Integrity Act.”
(E)(iii) Record Keeping and Audits	Apparently applicable to regional centers with an on-going status as sponsor of investor petitions. As a practical matter, when auditing records on an on-going basis, regional centers should be held to record requirements that existed at the time when their annual reports were filed, and that apply to the petitions they sponsor (with adjudication standards largely following the law at the time of filing).
(F)(i-iii) Business plans for regional center investment	Not applicable. Form I-956F is only required for NCEs soliciting investors under RIA.
(F)(iv) Site Visits	Apparently applicable to all NCEs and JCEs still in the job-creating stage.
(F)(v) Parameters for Capital Redeployment	Apparently applicable on an on-going basis to EB-5 investor funds that must be maintained at risk.
(G) Regional Center Annual Statements	An on-going reporting requirement would naturally apply to every regional center with EB-5 funds under on-going management. However, the specific content of the annual report is specific to the basis of regional center designation. INA 203(b)(5)(G) lists out annual report content that is specifically for “Each regional center designated under subparagraph (E)” – with no mention of regional centersdesignated under Section 610 of the Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations Act, 1993. The content list for regional centers “designated under subparagraph (E)” naturally echoes the new Form I-956 and I-956F (which regional centers not seeking designation or new projects under RIA are not required to file), and covers content specific to RCs soliciting and deploying new investment. While INA 203(b)(5)(G) is silent on annual reporting for regional centers retaining designation under 610(b) and not amending designation to sponsor new projects or investors under the Integrity Act, USCIS might reasonably request such RCs to continue to file I-924, which was designed based on 610(b) (or to create a version of I-956G that omits the content only applicable to regional centers who have filed I-956 and I-956F, and to soliciting funds under RIA).
(H) Bona Fides of Persons Involved	Not applicable, since RCs not soliciting investment after RIA are not procuring any funding under the program as described by RIA. The statute specifically defines “persons involved” as “in a position of substantive authority to make operational or managerial decisions over pooling, securitization, investment, release, acceptance, or control or use of any funding that was procured under the program described in subparagraph (E).” Funding procured prior to RIA was not proposed under subparagraph (E), but under the program described in Section 610 of the Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations Act, 1993. (And as a practical matter, regional centers cannot retroactively change the persons who were involved in pooling investment that was pooled prior to RIA.)
(I) Compliance with securities laws	Not applicable, since RCs not soliciting investment are not engaged in offers, purchases, or sales of securities, or in providing investment advice – the activities subject to securities law compliance. There is obviously no on-going need to certify compliance for activities in which an RC does not engage.
(J) EB-5 Integrity Fund	Not applicable, since this section calls for a fee to be collected from “each regional center designated under subparagraph (E).” It does not reference regional centers designated in Section 610 of the Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations Act, 1993. As noted above and with reference to the Behring Settlement Agreement, a previously-approved regional center is only required to amend its designation under subparagraph (E) “for the purposes of sponsoring new projects and new investors under the Integrity Act.”
(K) Direct and Third Party Promoters	Not applicable to RCs with no open offerings to be promoted to alien investors.
(N) Threats to the national interest	Apparently applicable to all designated RCs, with no reference to whether it was designated under subparagraph (E) or Section 610 of the Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations Act, 1993.
(O) Fraud, misrepresentation	Apparently applicable to all designated RCs, with no reference to whether it was designated under subparagraph (E) or Section 610 of the Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations Act, 1993.
(Q) Fund Administration	Not applicable to regional centers that already deposited and deployed investor funds to capital investment projects prior to RIA, and are not raising any new funds to be deposited or deployed.

Filed under EB-5 Law & Policy

March 20–April 25 EB-5 Engagement Invite

January 30, 2023 19 Comments

3/14 UPDATE: The EB-5 engagement has now been postponed to April 25, 1-3 ET. Visit the invite page to register again. The postponement email said “We appreciate all the feedback and questions you submitted in advance and are very closely reviewing this helpful information.”

From: U.S. Citizenship and Immigration Services <uscis@public.govdelivery.com>
Sent: January 30, 2023 1:00 PM
Subject: USCIS Immigrant Investor Program (EB-5) Stakeholder Engagement

USCIS Immigrant Investor Program
(EB-5) Stakeholder Engagement

Monday, March 20, 2023
1:30 – 3 p.m. Eastern

U.S. Citizenship and Immigration Services (USCIS) invites you to participate in a stakeholder engagement on Monday, March 20, 2023, from 1:30 to 3 p.m. Eastern.

During the first part of the engagement, USCIS will discuss three specific areas within the Immigrant Investor Program.

The three topics are:

Direct and Third-Party Promoters: A promoter should submit Form I-956K, Registration for Direct and Third-Party Promoters, before operating on behalf of any of the specified entities or promoting any offering under the EB-5 Regional Center Program. The promoter must submit Form I-956K separate from the Form I-956F, Application for Approval of an Investment in a Commercial Enterprise, to seek an approval of an investment in a commercial enterprise.

Investment Period: USCIS will discuss the requirements for an immigrant investor to sustain their investment if they filed Form I-526, Immigrant Petition by Standalone Investor, before March 15, 2022, and the new requirement under the EB-5 Reform and Integrity Act of 2022 (RIA) that capital must be expected to remain invested for at least two years for those who filed an I-526 or Form I-526E on or after March 15, 2022.

Regional Center Operations: We will discuss issues related to regional center operations, in particular those who wish to withdraw from the program and terminate their status and those who do not wish to solicit investments for new projects under the RIA.

We will then hold a Q&A to hear questions, comments, and individual feedback from stakeholders on these three topics. Although we are interested in receiving overall feedback about the EB-5 program, we would appreciate focusing the Q&A portion of the engagement on the topics above.

We will not address case-specific questions, questions outside the scope of the engagement, or issues under active litigation or likely to be litigated. We are committed to public engagement, and sessions like this provide valuable feedback as we work to improve our programs. Participation in this engagement will be virtual.

Questions for consideration:
If you would like to submit a question in advance on one of the three topics we will be covering during this engagement (direct and third party promoters, sustainment, or regional center operations), please send your question to the Public Engagement mailbox at public.engagement@uscis.dhs.gov with the subject line “Question: EB-5 Engagement March 20, 2023” by 4 p.m. Friday, Feb. 10.

To Register:

1. Visit our registration page.

2. You will be asked to provide your email address and select “Submit.”

3. On the next screen, you will see a notification that you successfully subscribed to this event.

Once we process your registration, you will receive a confirmation email with additional details.

To request a disability accommodation to participate in this engagement, email us at public.engagement@uscis.dhs.gov by 4 p.m. Eastern, Monday, March 13.

Note to media:

This webinar is not for press purposes. Please contact the USCIS Press Office at media@uscis.dhs.gov for any media inquiries.

We look forward to your participation!

Filed under EB-5 Events

December/January Updates (Regional Center status, visa availability, I-526 and I-829 Processing in Q4, Fee Rule, Form I-526 and I-956 revisions and comments)

January 6, 2023 4 Comments

A quick roundup of significant EB-5 developments since last report – rather delayed, while I held out for good news. I did not expect to start my 14th year in EB-5 grappling with basic questions like “How and why do regional centers exist?” and “Is EB-5 an immigration opportunity?” I hope that 2023 will bring policy clarifications and processing improvements to help resolve such questions, which should not be open.

Regional Center Status

On December 23, USCIS slipped a new sentence onto the USCIS website: “Dec. 29, 2022, is no longer the deadline to file Form I-956, Application for Regional Center Designation, amendments, as required by the Behring Settlement, and Form I-956G, Regional Center Annual Statement. USCIS is extending this deadline until we publish guidance that clarifies the requirements of these forms.”

I saw this update on Christmas Eve and thought about leaving the nieces and nephews to report on it, but why? EB-5 stakeholders needed this notice months ago. By three business days before the deadline, everyone had already had to make their guesses and gambles and done what they were going to do with I-956 and I-956G (if they even realized that a December 29 deadline existed, since USCIS did not offer I-956 guidance to the general public, but only in litigation settlement and a private meeting with a few litigation plaintiffs). USCIS and industry are not sure how to handle the regional center application, amendment, and reporting forms because we lack clarity or agreement on basic questions about regional center identity and responsibilities. The effect of the Integrity Act on previously-approved regional centers and their investors remains unclear. Nine months after the Integrity Act passed, the USCIS Policy Manual section on regional center designation and termination remains vacant. Meanwhile, billions of dollars are flowing in real time under sponsorship of entities and from investors who aren’t sure what eligibility requirements do or will apply to them. On the bright side, I’m glad that USCIS acknowledged a need to “clarify the requirements,” and did not stick to an unreasonable deadline. And stakeholders now have more time to provide input.

Form I-956, I-956F, I-956G, and I-956K

The Federal Register has re-opened opportunity to comment on the new regional center forms I-956, I-956F, I-956G, and I-956K. Feedback will be accepted until January 26, 2023. (Click on the “View More Documents” button to see what you’re commenting on.) This is a great chance to submit your view on the application/implementation of regional center requirements, because a responsible person at DHS is compelled to actually read and respond to each comment made through the regulatory process. It’s not like stakeholder meeting comments, which can disappear into the void. I was interested to read USCIS’s digest and responses to the previous round of comments. Many stakeholder questions about ambiguities were met with the response “USCIS may consider rulemaking to address these issues.”

I-526 and I-829 Receipt and Processing Data

USCIS published form receipt and processing data for FY2022 Q4 (July to September 2022), and I also received data unofficially for EB-5 adjudications in October to December 2022. See my Processing Data page with updated charts and detail for I-526, I-829, and I-485 processing through the end of the year.

Short report: fantastic performance for I-485 at the California Service Center in Q4 (thanks to USCIS leadership for prioritizing EB visa issuance and to Congress for applying political pressure that proved effective!), and on-going terrible performance by the Investor Program Office. IPO is still on track to deliver over-six-year processing times for I-526 and I-829, still chaotic in the date range of petitions being processed, and still denying a large percentage of I-526. In July to September 2022, over half of I-526 adjudications were denials. Fiscal Year 2022 ended with a total of 590 I-526 approvals and 825 denials/withdrawals; in other words, $295+ million in EB-5 investment yielded a chance to pursue a visa while $423.5+ million was invested without resulting in any chance to immigrate. These dreadful numbers can trace back to factors including economic pressures on EB-5 projects, heightened risk from long processing delays, the legacy of “extreme vetting” philosophy, and rogue IPO staff alone in their home offices and apparently free to make up and apply idiosyncratic standards of proof for source of funds. I expect the I-526 success rate to improve if and when IPO standardizes and publicly articulates its policy and adjudication guidelines, shortens processing times, and increases staff supervision and quality control.

I-956 and I-956F filings commenced in Q4, but the USCIS data report for Q4 does not report them. The USCIS Office of Performance and Quality may not even realize that the I-956 forms exist, and still has line items for I-924. OPQ did add I-526E to its Q4 data reporting, lumped in one line item together with I-526. Just 188 I-526/I-526E were filed in July to September 2022.

USCIS Fee Rule

The Federal Register has published a Notice of Proposed Rulemaking for the future USCIS fee schedule, with a public comment period open until March 6, 2023. USCIS invites the public to a listening session for the Proposed Rule on January 11 at 2 pm ET.

The fee rule process is critical, because it determines over 90 percent of USCIS funding and whether or not USCIS has “the resources it needs to provide adequate service.” The fee rule process is a major reason why USCIS never has ended up with needed resources or adequate service. If you want a good cry and to lose some hair, read the 132,341 words that explain the budgeting methodology and assumptions. I am working on an in-depth article discussing the rule’s EB-5-related content. The obvious headline is the huge proposed increase to EB-5 form filing fees. But I’m more concerned by the assumptions and plans disclosed in discussion of how USCIS arrived at the proposed fees, and the question of how to respond strategically so that the Investor Program Office ends up with resources.

UPDATE: The IIUSA blog has published my detailed analysis of the formula and inputs behind the fee rule, with thoughts on how to respond.

Visa Availability

Congress did not, after all, pass the EAGLE Act or repeal country caps as part of FY2023 appropriations, which means that (for now) EB-5 visa availability remains constrained/protected by caps that limit any one country to 7% of visas in oversubscribed categories. In the near term, that on-going status quo is good news for anyone in EB-5 who isn’t an in-process EB-5 applicant born in China, India, or Vietnam.

The new EB-5 set-aside categories remain enticingly “Current” in the Visa Bulletin, which means nothing for planning because the Visa Bulletin cannot see and does not flag crowds, if any, when they start at the I-526 stage. The Visa Bulletin only monitors and controls the later visa stage, not the queue on its way to the visa stage. USCIS knows how many people are getting in line by filing I-526/I-526E, but USCIS has persistently refused to publicly report on I-526 filings/inventory by category or country. This leaves stakeholders blind to visa backlogs until the backlogs have already built up and too late to avoid.

If only USCIS would report timely and category/country-specific I-526 filing data, then we could project and compare in-process visa demand with available visa supply to calculate availability/timing for each EB-5 category. USCIS should want to empower prospective EB-5 users to judge upfront whether and when EB-5 could offer an opportunity to immigrate. The U.S. government engages in fraud when offers an investor visa incentive while making it impossible to assess, at the time of investment, the availability of that incentive. (So far, I’ve only succeeded in getting USCIS to answer in November 2022 a Freedom of Information Act request that I submitted in February 2020 for I-526 inventory by country, having previously fruitlessly tried to get country-specific I-526 data via IPO customer service requests. The two-year-old data was useless by the time it was finally delivered to me. Others have encountered similar delays and obstruction from USCIS. As of today, the best I-526 data we have is mostly thanks to IIUSA communicating with the now-retired Charles Oppenheim at Department of State, and goes through 2021. I hope for more transparency from USCIS in 2023!)

Form I-526 and I-526E

We get another chance to provide feedback to USCIS on the revised Form I-526 and I-526E, with comments due by January 23, 2023. The last round of comments successfully convinced USCIS that it’s unreasonable to demand that petitioners detail 40 years of employment history (the current proposed version asks for 20 years of employment history). Perhaps this time we can get through to USCIS what “substantive authority” means, such that USCIS doesn’t misidentify “persons involved.” Also, let’s all remind USCIS that the public list of questions and required evidence on the Form I-526 should match the private list of questions and required evidence given to USCIS adjudicators. (For example, if USCIS truly holds the untenable standard that that each investor’s eligibility is contingent on the lawful source of funds for each other investor in the NCE, then the Form I-526 should reflect that standard, and request lawful source of funds documentation for NCE investors other than the petitioner. Currently, the Form I-526 does not request any non-petitioner source of funds evidence. But USCIS has directed adjudicators to request it at the RFE stage, and to deny direct I-526 for lack of source-of-funds documentation for non-EB-5 investors.)

Form I-956K Promoter Registration

USCIS has published Form I-956K, Registration for Direct and Third-Party Promoters. The purpose of the form is “to register with USCIS as a direct or third-party promoter” and to “allow DHS to perform standard background checks with law enforcement agencies.” The form is exciting due to its ambiguities (with vague terms pointed out in the draft I-956K still undefined), and the dramatic consequences of getting it wrong. The I-956K instructions warn that if USCIS finds problems with I-956K, penalties can include criminal prosecution for the aspiring promoter plus denial of applications and petitions associated with the regional center, NCE, or JCE associated with that promoter. The I-956K instructions request that “a promoter should submit Form I-956K before operating on behalf of any of the specified entities or promoting any offering under the EB-5 Regional Center Program.” (See also the article “Who are ‘Promoters’ and What Requirements Apply to Them Under the EB-5 Reform and Integrity Act?” in the October 2022 Regional Center Business Journal, and the above-linked Federal Register invitation to submit I-956 comments to USCIS.)

Filed under EB-5 Law & Policy, EB-5 Statistics

EB-5 roller coaster continues (RC status after December 29, processing, FY2023 visas, EAGLE Act and country caps)

December 6, 2022 18 Comments

While my plate is full of everyday work plus hard articles that could be written, I’d like to briefly flag a few matters of critical importance for the EB-5 community. There are questions about the status of previously-approved regional centers and their investors, ongoing processing issues, and the prospect of new legislation to change everyone’s visa wait times. Before launching into details, a reminder that industry associations like IIUSA (for regional centers) and AIIA (for investors) are working on these issues, and you can join an association to help magnify your voice and interests in these volatile times.

Regional Center Status after December 29

USCIS finally published minute s from the October 14, 2022 meeting between USCIS and the plaintiffs in the Behring litigation. These minutes reveal that at least as of October, USCIS had yet to make up its mind about a few very consequential questions, and invited stakeholder feedback.

USCIS has not yet decided whether it will take the position that RIA requirements, such as fund administrators and audits, apply to pre-RIA projects. USCIS will consider stakeholders’ written position paper on this issue in accordance with existing channels of communication and in compliance with Section 107 of the RIA.
USCIS will accept input on the issue of whether the I-956G filing requirement should be deferred to December 2023 based on input from Stakeholders that much of the information is duplicative with the I-956 being filed in December 2022. Input will be provided in accordance with existing channels of communication and in compliance with Section 107 of the RIA.
USCIS has not determined what will happen to regional centers that choose not to file Form I-956. Specifically, it has not decided whether such regional centers will be terminated, whether they will have to file I-956H, whether they will have to file annual statements, or whether any of the RIA requirements apply to them. They will accept our written position paper on these issues in accordance with existing channels of communication and in compliance with Section 107 of the RIA.

That last bullet point is especially urgent and significant. The Form I-956 content is focused on compliance for capital raising activities, and as such not technically relevant for previously-approved regional centers that do not plan to raise new EB-5 capital going forward. But what if USCIS decides to terminate all regional centers who do not choose to raise new EB-5 funds? If USCIS starts terminating regional centers for not filing I-956 by December 29, 2022, instead of offering another status for RCs still responsibly shepherding previous EB-5 investment, then past investors in those RCs will find their immigration status in jeopardy. Under the new law, regional center termination means that good faith investors in the terminated regional center lose eligibility in 180 days unless (1) the investor’s NCE manages to switch sponsors and secure affiliation from a different still-authorized regional center (practically a fraught and expensive undertaking) or (2) the investor makes a new investment (yikes). Under the new law, regional center termination has consequences for investors at all stages in the process, including during conditional permanent residence. The grandfathering language in the new law protects past applicants from denials based on the expiration of regional center program authorization, but not explicitly from denials based on changes resulting from new legislation. So USCIS faces judgement calls when it comes to how to treat previously-approved regional centers and their investors, and should hear our input for those judgement calls. (To review the new law provisions, see INA 203(b)(5) sections (M) and (S). And here’s the Settlement Agreement.)

The plaintiffs in the Behring litigation are coordinating response to USCIS. Their feedback will naturally reflect their interests and perspective as regional centers who do choose to file I-956 to raise new capital going forward. If you’re with an RC that does not plan to raise new capital after RIA, and concerned about protecting past investors, you should also let USCIS hear your voice and reasoning, as soon as possible. The stakes are very high. See the base of this page for links to accepted channels of communication for submitting feedback. (UPDATE: Klasko Law, counsel for several of the Behring litigation plaintiffs, has just published a detailed article on this topic.)

RIA Compliance Resources

Note that the October 2022 Regional Center Business Journal is packed with substantive and helpful articles for regional centers working with compliance under the new law, including:

“Checklist of Contents for Regional Center Compliance Policies and Procedures Manual Under the EB-5 Reform & Integrity Act” by the EB-5 Securities Roundtable
“New Job Creation and TEA Rules in the EB-5 Reform and Integrity Act of 2022 Revised and Explained” by Scott Barnhart and Adam Greene
“Understanding Audits & Fund Administration Under the Reform & Integrity Act” by Coleen Danaher, Bidhya Dhungel, and Mike Xenick (also a blog post)
“Regional Center Transactions Post-RIA: Considerations for Purchase, Sale, and/or Rentals” by Rohit Kapuria and Ronald Fieldstone
“EB-5 Concurrent Filing” by Simone Williams and Charles Kaufman
”Who are ‘Promoters’ and What Requirements Apply to Them Under the EB-5 Reform and Integrity Act” by Catherine DeBono Holmes (also a blog post)
“Reserved Visa Rules, Possible Future Visa Allocation, and Recommendations” by Barnett, Oppenheim, and Lee (also a blog post)

I’m thankful for the hard work by industry. I’ve noted no significant new content on the USCIS website EB-5 pages. The EB-5 Policy Manual EB-5 Chapters 3, 4, 5, and 6 have not been updated yet based on the new law.

Processing and Timing Questions

I continue to update my Processing Data page with intel as I receive it on I-526 and I-829 processing. Pay attention to volume trends, and to the distribution of filing dates being adjudicated. Since May 2022, the Investor Program Office has stabilized into a new stride of 100-140 decisions per month each for I-526 and I-829, with decisions spanning a wide range of filing dates. At that volume, it will take IPO about eight years to process the already-pending inventory of over 12,000 I-526 and over 11,000 I-829. My best guess for your personal adjudication wait is “probably less than eight additional years,” with the “how much less” depending on your filing date, whether you happen to benefit or suffer from USCIS’s major deviations from FIFO processing, how soon the new adjudicators hired this year/next year can get up to speed, and whether/when IPO gets approval to significantly increase its authorized staffing level. No one thinks that eight years is an acceptable processing target. But regardless of goals, actual performance is constrained by staffing (which doesn’t change quickly) and by decisions about processing order (which can only improve appearances by manipulating the median, and provide faster times for some at the cost of slower times for others). IPO’s demonstrated incapacity to handle the EB-5 inventory is my top EB-5 concern.

The process for I-526 approvals getting transferred to NVC continues to be problematic. See question 16 (p. 7) of this June 2022 AILA/DOS Q&A for a process to follow if NVC has not received your approval notice and sent you a welcome letter after 60 days.

Visa operations generally are improving, though not back to normal. See the DOS October 21 Update on Worldwide Visa Operations.

FY2023 Visa Availability

Department of State has published Annual Numerical Limits for Fiscal Year 2023. Despite what the EB-5 Reform and Integrity Act said, the published FY2023 annual limit for EB-5 visas is exactly and only 7.1% of the EB limit. The report mentions no carryover of the 6,396 reserve EB-5 visas that went unused in FY2022. I had wondered what DOS would do with a new EB-5 carryover law that contradicted another part of the INA. It appears that the conflict has not been resolved in EB-5’s favor. It’s a pity, because EB-5 will lose over 10,000 visas by FY2024 if the newly-reserved EB-5 visas both can’t be issued (because strictly restricted to post-RIA applicants who can’t reach the visa stage yet) and also can’t be carried over to the next year (as RIA had contemplated). I’ve encouraged advocates to look into this.

EAGLE Act and Country Caps

Under current law, there’s a country cap of 7% applied to each category of Employment-Based visas. The cap limits any one country to 7% of visas within that category until other countries’ demand under the 7% limit has been satisfied. (I used to assume that the 7% applied to categories as a whole, not subcategories, but Charles Oppenheim recently set me straight. In EB-5, the 7% cap applies independently within each reserve and unreserve visa class, not just to the EB-5 limit as a whole.)

Without country caps, visas within each EB category would simply get issued by priority date, oldest to youngest.

Who benefits from the country cap law, and who would benefit from changing the law to eliminate country caps and let EB visa applicants flow in FIFO order? Country caps protect visa availability for applicants from low-demand countries, while constraining applicants from high-demand countries into enormous backlogs. Big tech companies reliant on EB-2 and EB-3 don’t like country caps, which is why legislation to eliminate country caps has been proposed in Congress continuously since at least 2011. In EB-5, Chinese investors who filed I-526 before 2018 and Indian investors who filed I-526 in 2019-2021 suffer from country caps, while others largely benefit. I’ve written about country cap bills several times over the years and they never passed, but the current version (the EAGLE Act H.R.3648/S.4567) is reportedly actively in play, with a chance to get attached to FY2023 appropriations. And so I’m back with a few comments on the EB-5 effects, in case the legislation does pass.

To understand what a merely-FIFO queue for EB-5 visas would look like, it’s necessary to think about the distribution of the 80,000+ people currently queued up for an EB-5 visa (either already at the visa stage, or on the way at USCIS). The government doesn’t report this valuable intel directly, but I can guess by looking at data for I-526 filings by country and by year, and thinking about where those petitioners must be today based on what I know about petition processing, visa issuance, and the visa bulletin to date. Having estimated the distribution of applicants in today’s queue, I can further project the FY2025 distribution based on what I expect of I-526 processing and visa issuance in 2023 and 2024. I don’t have time to spell out all my thinking on this, but here’s my Excel file of data and calculations. You’re welcome to download and play with this and apply your own assumptions. (One significant variable is attrition from denials/withdrawals/age-outs, which could reasonably turn out much higher than the value entered in my model.) My best guess is that if Congress acts soon to eliminate country caps, and if the country cap elimination takes effect in FY2025 as proposed, then it will have the following EB-5 effects.

Without country caps, the wait times for China-born EB-5 applicants with pre-2022 priority dates will at least have a predictable ceiling, instead of being potentially nearly infinite as is the sad case under country caps plus reserve visas. I estimate that a majority of the Chinese backlog (at least 2016/2017 priority dates) would get visas at least by 2032.
Without country caps, applicants from all countries except China with pre-2022 priority dates who don’t already have a visa by FY2025 could wait until 2032 before they can start getting visas. That estimate considers the number of Chinese applicants with pre-2018 priority dates whom I calculate will still be pre-green-card by 2025 (further considering newly-restricted unreserved visa availability and pending rest-of-world demand). Based on processing trends and factors observable so far, I expect that a significant number of non-Chinese who filed I-526 in 2019-2022 will not have received a visa yet by October 2024 due to slow processing, and thus impacted by country cap removal.
Without country cap limits/projections, people filing I-526 or I-526E after 2022 would be advised to invest exclusively in one of the new reserve visa categories (since the unreserved category will be entirely absorbed by the oldest Chinese applicants if unconstrained by country caps). With country caps, on the other hand, new petitioners from some countries other than China and India might be advised to invest outside a TEA to qualify for an unreserved visa, since 7% of 68% is a lot more visas available than 7% of 20%, 7% of 10%, or 7% of 2%.
Without country caps to hold back and distribute demand, EB-5 categories will quickly become not-current across the board in the visa bulletin.

People are often surprised that applicants who started the EB-5 process years ago remain vulnerable to changing rules and conditions for visa availability. This is true because of when visas get allocated. Filing I-526 does not lock in access to a visa. Petition approval does not lock in access to a visa. The law and conditions that determine the EB-5 visa allocated are those that pertain at the time the visa is allocated — a time years after investment under current processing conditions. For EB-5 to become a stable program, that needs to change. We need more predictability at the time of investment/I-526 filing about the availability and even existence of the visa that incentivized the investment. The U.S. government should want to avoid bait-and-switch.

Country cap removal keeps being pushed in Congress because Employment-Based visas have a live issue — painful backlogs. So long as country cap victims are suffering in decade and multi-decade long queues, country cap beneficiaries cannot expect to rest easy in an unchallenged status quo. Until backlog problems resolve, we can expect to see civil wars over the insufficient few visas available. I would love to see the U.S. government supply EB-5 visa numbers sufficient to reward the investment-fueled U.S. job creation that already occurred based on the promise of such visas. That would be only fair. As things stand, the United States has raised and benefited from about 15 billion dollars in EB-5 investment over and above what it can justify based on current EB-5 visa number limits.

Filed under EB-5 Law & Policy, EB-5 Resources, EB-5 Statistics

10/19 EB-5 Stakeholder Meeting (call recording, I-956 and I-956G for pre-existing RCs, termination risk, sustainment)

October 19, 2022 12 Comments

10/25 Update: USCIS has now published EB-5 National Stakeholder Engagement Talking Points (PDF, 238.48 KB) and National Engagement EB-5 Stakeholder PowerPoint Presentation (PDF, 315.88 KB).

Today USCIS held a substantive and friendly meeting with EB-5 stakeholders. I wouldn’t exactly call it an engagement, since USCIS did not address many questions that we submitted in advance, and responded to the majority of in-person questions with “thank you for your input” and/or “please send this question to the EB-5 Customer Service Mailbox” (a notorious black hole). However, I appreciate that USCIS put all of IPO leadership on-stage to speak to us, and the level of detail shared. Division leaders spoke for nearly an hour, and I learned something. The subsequent Q&A session was short on A, but expressed more solicitude and helpful intent than we’ve heard in a long time. I sensed a litigation subtext, with about half of the content discussing Integrity Act implementation in compliance with the Behring Settlement Agreement, and the other half explaining operations challenged by and exposed in Mandamus litigation.

Besides organizational detail, which I’ll discuss further in a separate post, the teleconference included the following new and controversial input.

Treatment of Previously-Approved Regional Centers and their Investors: USCIS for the first time addressed the question of consequences if a previously-approved regional center chooses not to raise new investment under RIA, and therefore does not file a I-956 by December 29, 2022. IPO Chief Alissa Emmel stated that this (1) will not prevent the adjudication of related Form I-526 and I-829 filed before the passage of the Integrity Act, (2) may result in termination of the RC’s designation, and (3) will not be the basis for denial of the I-526 or I-829 petitions. Ms. Emmel did not address the contradictions in her statement, considering RIA provisions that make termination a potential sole basis for denying petitions. In response to a followup question, Acting Compliance Division Chief Andrew Driscoll Black indicated that a previously-approved regional center must file both I-956 and I-956G this year or be subject to termination, but then admitted that he hadn’t thought about the scenario where a previously-approved RC simply doesn’t have immediate plans to sponsor new projects, and thus no occasion to apply right away to sponsor new projects. Mr. Black advised to submit the question to the IPO customer service mailbox, with an indication that it’s time sensitive. If only USCIS had read and prepared to answer the many advance questions submitted on this urgent topic. See minute 4 and 1:12:13 of my recording.

Annual Report: Although the USCIS website I-956G instructions say that regional centers approved after May 14, 2022 may file the I-956G annual report, the Investor Program Office gave different instructions in the call. Acting Compliance Division Chief Andrew Driscoll Black stated that all regional centers approved prior to October 1, 2022 must file the I-956G annual report for 2022. Alissa Emmel admitted that USCIS has yet to publish information about how to pay the newly-required annual fee, and that USCIS will not impose late penalties on payment of 2022 fees. See minutes 7, 32, and 1:17:00 of my recording.

Sustainment Period: Paul Egan, Acting Policy Division Chief, indicated his understanding that the Integrity Act modifies the sustainment requirement for new investors who file I-526 after the Integrity Act. When pressed about this during the Q&A, Mr. Egan had already left the call and none of the other USCIS reps wanted to confirm or clarify his statement. “We’ll make sure to get a FAQ out for the public very soon.” I’m sure that many advance questions addressed this hot topic, so USCIS should’ve been ready for it. See minute 19:08 and 1:00:00 of my recording.

I’ll comment in more detail when USCIS publishes the prepared statements, as promised. In the meantime, here is a link to my recording of the 10/19 EB-5 Stakeholder Engagement, and an index to recording content. (For future reference, I’m also adding this engagement to my Meeting Log of USCIS EB-5 engagement reports going back to 2009.)

Time Start	Speaker	Topic
0:22	Amanda Atkinson USCIS Office of Citizenship, Partnership, and Engagement	Introduction
3:18	Alissa Emmel, IPO Chief	Introduction
4:02	Alissa Emmel, IPO Chief	RIA implementation updates (Behring Settlement content, RCs that don’t file I-956 by December 29, RC fees)
8:00	Alissa Emmel, IPO Chief	Staffing update (total employment level, discussion of duties and priorities, excuses for lack of resources assigned to adjudication, general statement on hiring plans)
10:22	Alissa Emmel, IPO Chief	Digitization Initiative Update (current initiative to scan I-829 files, indefinite future hopes for ELIS)
12:45	Karen Karas, IPO Deputy Chief	Discussed IPO operations and divisional responsibilities
15:36	Paul Egan, Acting Policy Division Chief	Editorialized about policy change implications of the Integrity Act (including change to the sustainment period requirement) and gave a target to finalize new EB-5 regulations at the end of CY2023.
23:00	Todd Young, IPO Communications and Liaison Team Chief	Discussed IPO communications team staffing and responsibilities.
25:48	Andrew Diroll-Black, Acting Division Chief for Compliance Division	Discussed Regional Center compliance, I-956 forms, I-956 adjudications, RC annual report requirement. Revealed that a major I-956 RFE issue on the question of who should file a I-956H.
33:55	Kevin Murk, Division Chief for Form I-526 Division	Discussed I-526 team staffing, inventory management, workflow management, and excuses for low completion rates.
44:45	Tsa Weatherl, Division Chief for Form I-829 Division	Discussed I-829 team staffing, workflow, excuses for low completion rates, filing tips
52:27	Amanda Atkinson moderating the Q&A session	Questions: 53:44 Carolyn Lee (encouragement to engage, focus specific issues); 58:53 Mona Shah (problems with I-829 extensions, and DOS not recognizing extensions); 1:00:00 Dan Lundy (what is the sustainment period post-RIA and pre-RIA?); 1:03 Rana Jazayerli (I-956 amendment filings, does it preclude also requesting expanded geography?); 1:08 David Morris (encouragement to engage, focus specific issues, suggest ANPRM); 1:12:13 Rohit Kapuria (does previously-approved RC without immediate new projects need to file both I-956 and I-956G this year?); 1:17 Jesse Rios Lone Star Regional Center (which RCs need to file I-956G?); 1:20 Joel Yanovich (problem with incorrect rejection of concurrently-filed I-485); 1:22::40 James Wolf, Golden Pacific (deference to pre-RIA examplars?); 1:25 Michele Franchett (encouragement to engage, question about application of audit exemption to fund administration requirement)

Filed under EB-5 Events, EB-5 Law & Policy, Updates from USCIS

Incomplete EB-5 policy update

October 11, 2022 5 Comments

On October 7, the USCIS Policy Manual was updated with revisions to some of the policy affected by the EB-5 Reform and Integrity Act. In Volume 6 Part G “Investors,” which contains EB-5 program guidance, USCIS updated Chapters 1 and 2 but not Chapters 3, 4, 5, or 6. USCIS also made changes to Volume 7 to add concurrent filing for EB-5 (now allowed since RIA) and to delete priority date protection for EB-5 (now not available since the EB-5 Modernization Regulation was rescinded). The Policy Alert does not acknowledge that Volume 6 Part G is now a confusing mix of half updated and half outdated content, but I trust that USCIS realizes the fact and is still at work to finish the job. For reference, here is my redline document comparison of the October 7, 2022 version of Volume 6 Part G with the previous version dated July 22, 2021. I will comment more when USCIS completes the revision, and look forward to industry reactions. The USCIS website EB-5 pages have also been getting edits, but still not fully updated. Reading the policy manual and the website, I guess that writers have been instructed “as much as possible just quote the law and don’t add any clarifications or further guidance, which could get us sued.”

Filed under EB-5 Law & Policy

I-526, I-829, and I-485 Processing (FY2022 Q3 report and leaked data)

October 7, 2022 12 Comments

Last week, USCIS updated the Immigration and Citizenship Data page with reports for FY2022 Q3 (April to June 2022). I collected EB-5-specific data from the All Forms and I-485 reports, summarized below, and created charts to place the reports in context.

FY2022 Q3 Performance Data Report Excerpt

Form	Description	Received	Approved	Denied	Total Completed	Pending at period end	Processing Time (months)
I-526	Immigrant Petition by Alien Investor	32	264	191	455	12,988	43.8
I-829	Petition by Investor to Remove Conditions	200	340	49	389	11,523	48.1
I-485	I-485 at the California Service Center (WSC)	1,396	372	54	426	5,323

Points I notice in the Q3 data report:

USCIS has not yet started reporting data for the new EB-5 forms (the I-956s or I-526E). The report does include the pending I-924 (139) and I-924A (1,813) that may not ever be adjudicated.
Q3 saw over a thousand I-485 receipts at California Service Center, but only a few dozen I-526 receipts. I’m not surprised, considering that Q3 was the first quarter under the EB-5 Reform and Integrity Act.
Q3 completion rates for I-526, I-829, and I-485 were all much higher than the previous quarter (an encouraging trend), and still very low in context of historical performance and the backlog (a notable fact). Significant room for improvement remains, as illustrated in the long-term trend charts provided below.
Dividing “Pending at period end” by “Total completed” for each form, we can derive a processing time estimate that will apply to a petition at the end of each queue if USCIS continues the same productivity it achieved in Q3. Result: 7.1 years for I-526, 3.1 years for I-485, and 7.4 years for I-829. We need to keep pressing USCIS to increase processing volume going forward, to avoid that unacceptable result. (When I redo the calculation using trailing 12-month completions in the denominator rather than just Q3 completions, then the result stays at 7 years for I-829 but increases to 13 years for I-526 and 6 years for I-485. Yikes! We now know that in 2021/2022, the Investor Program Office lost a large number of its productive staff and kept less productive staff. That’s a problem that that doesn’t solve quickly. I was encouraged to see a few more IPO job announcements this month, and look forward to seeing some results from their work in 2023/24 once they’re hired and trained.)
The Processing Time column in the USCIS report indicates the median processing time of cases decided in the reported quarter. I tend to disregard this number because it’s (1) not predictive (simply reflects one point of past performance) and (2) not generally applicable even to past performance (the processing time range behind this median is extremely wide, as further discussed below).
The I-526 denial rate remains alarming: 42% of I-526 decisions in April to June 2022 were denials. The large number of denials reflects attitudes at the Investor Program Office, particularly toward direct EB-5 cases, and particularly since the EB-5 Reform and Integrity Act protected USCIS from judicial review of unjust EB-5 decisions. (During the RC program lapse, a majority of the reported “denied” I-526 were actually just withdrawn I-526, but the Q3 denials are largely denials.) Litigators, is there anything we can do about systemic adjudication problems behind mass denials, or do petitioners really just have to fight battles individually in the sluggish AAO process?

As an aside, note that USCIS is making what might be a good faith effort to improve case processing reporting, and solicits public input. Here is a copy of an email I received yesterday from USCIS, inviting people who have filed a form with USCIS in the past 12 months (or their advocates) to apply for participation in a focus group. This group will help USCIS “understand if the information provided on the Check Case Processing Times webpage is useful.” Consider applying to participate! It’s always possible that the current Check Case Processing Times page isn’t the way it is out of malice. Maybe USCIS would truly like to design a page that’s useful to applicants wanting to understand processing times, not only useful to USCIS for the purposes of obscuring processing trends and blocking case inquiries.

USCIS data reports show the total size of the EB-5 form workload, and the rate at which USCIS is working on it. USCIS does not officially give visibility into which dates they are actively processing, and which they are leaving behind. For that, we have to consult anecdotal evidence and leaks. I’m not saying where I got the detail reported in the following charts, but I judge that the detail is accurate and close to complete. As illustrated in the charts, the Investor Program Office is far from implementing a first-come-first-served process. This complicates time estimates for individual cases.

Points I note from the unofficial data.

Over the past year, I-829 processing has generally clustered around petitions filed in 2019, but also included many I-829 filed in 2017 and 2018, and a few filed as early as 2015 and as late as 2021. I do not know the reasons for departing from FIFO discipline in I-829 adjudications. Is there an element of randomness in case assignment resulting from paper files and lax management? Is USCIS trying to group I-829 from different filing dates by project, to process the project all at once? Are expedite approvals and mandamus actions having a significant impact? Are certain groups of I-829 intentionally left untouched or taking years of touch time for reasons related to policy or litigation? If anyone would like to leak reasons to me, please reach out on email, phone, or Telegram.
I-526 processing has ranged broadly over the past year. Recent I-526 approvals have settled into a sort of cluster on I-526 filed in December 2018, but also covered many cases from the end of 2019 (probably mostly direct investor petitions assigned during the RC program shutdown), I-526 filed in 2021/22 (probably mostly I-526 with expedites granted – or possibly cherry-picked to make the median processing time report look better) and a wide range of I-526 filed before 2018 (selected out of the unadjudicated backlog for unknown reasons, and incidentally convenient for making the 80^th percentile case inquiry cut-off more restrictive). My charts highlight timing for I-526 approvals and RFEs. The denial picture is more murky, since USCIS mixes denials and withdrawals, but I note generally that denied petitions tend to be older than approved petitions. The data supports a reasonable hypothesis: that the longer an I-526 stays unadjudicated, the more likely it is to end in denial or withdrawal.
USCIS has cleared close to 100% of I-526 filed up through September 2015 (the end of the last long-term RC program authorization), but still has a significant pending inventory of untouched I-526 from every quarter since then. The visa availability approach can explain about half of these left-behind I-526. As a reminder, you can find the most recent breakdown of total pending I-526 by country of petitioner origin in the March 2022 Oppenheim presentation for IIUSA (slide 8). This PDF from October 2018 was the last detailed per-country inventory breakdown published by USCIS. My information for I-829 is less complete, so I did not attempt a detailed I-829 inventory breakdown.

Filed under EB-5 Statistics

Facing FY2023, Suggested Articles, October 2022 Visa Bulletin

September 30, 2022 11 Comments

Today marks the end of Fiscal Year 2022, and the first September since 2015 that I haven’t spent reporting on Congressional news and the appropriations process, waiting with bated breath for updates about regional center program authorization.

Thanks to the EB-5 Reform and Integrity Act of 2022, we now have until September 30, 2027 to panic about legislation to reauthorize the regional center program. EB-5 is stable today in the sense that it neither requires nor anticipates near-term legislative action.

My dream for the future is that EB-5 will also stabilize in the sense of offering a reliable opportunity to immigrate based on investment. In this dream, investor petitions will be processed. Policy will be written. Adjudications will be based on transparent standards, and will have a predictable timeline. Visa availability will be transparent and predictable. Investors who satisfy all the requirements will get a chance to immigrate before they age out, give up, or die. An investment will be an investment, not an unpredictable series of deployments. Escrow protection will be possible. Regional centers will know where their status and responsibilities begin and end. EB-5 issuers will be constrained to make offerings that can and do bear scrutiny as investments. Reasonable exit strategies will be expected and possible. The experience of existing investors will influence a regional center’s ability to attract new investment. Good actors will be empowered to plan well based on good information about the immigration process and success factors. Bad actors will not flourish in impunity underwritten by long processing queue times, policy uncertainty, misdirected adjudication, and lack of communication from USCIS. Both the government and stakeholders will put stock in what happens after investors make investments and file petitions. We’re partway there, and with so much scope for improvement going forward.

To the extent that words can help, I hope and plan to bring out articles on FY2023 visa availability and reserved visas implementation, the scope of exemplar approval, denial factors and issues for attention in IPO adjudications, questions about regional center and investor status after December 29, China timing factors, India timing factors, market size potential and constraints, issues and questions in new forms, and changing project success factors in the wake of the new law. In the meantime, I’ll suggest a reading list of articles from other sources, followed by a comment on the October 2022 visa bulletin.

Reading list:

Fiscal Year 2023 Employment-Based Adjustment of Status FAQs” (09/08/2022) at USCIS.gov. A detailed and informative Q&A from USCIS about the specific processes involved in employment-based visa allocation. Predicts the number of FY2023 EB visas available, settles a question about EB-5 visa carryover, and offers valuable practical tips for I-485.
Reserved Visa Rules, Possible Future Visa Allocation, and Recommendations” (09/09/2022) on the IIUSA blog. Written by Joseph Barnett and Lee Li in consultation with Charles Oppenheim, this article provides clear and updated analysis on reserved visas. The article revised my understanding, particularly with respect to how reserves interact with country caps. Once I get feedback from the authors on a couple points, I’ll publish a revision to my article from April.
IIUSA Questions and Comments for October 19, 2022, EB-5 Stakeholder Engagement (09/16/2022) IIUSA did nice work in articulating many pain points in IPO operations, pointing out why the problems are problems, and suggesting feasible solutions. Now that someone has done all the work to write out these good comments, let’s all read them and amplify them with repetition. (Also FYI, here are the comments I submitted to USCIS, focused on my top concerns of transparency, and the status of pre-RIA regional centers and investors.)
IIUSA Teams Up with Kurzban Kurzban Tetzeli & Pratt to Seek USCIS Records on EB-5 Source of Funds Adjudications (9/7/2022) on the IIUSA blog. This article reports on one step in a very important battle: taking on the new USCIS practice of denying I-829 over source and path of funds that were approved at the I-526 stage. I’m glad to see this critical issue getting attention and action.
How long must you keep EB-5 capital at risk? (9/27/2022) in EB5 Investors Magazine. Robert Divine explains how the EB-5 Reform and Integrity Act changed the EB-5 sustainment period, and the consequences for new investors and redeployment. This is game-changing good news, if USCIS also sees what Robert sees in the law. Another point worth amplifying.

I considered writing an article about the October 2022 Visa Bulletin, discussing what it means for demand to “materialize,” as the visa bulletin notes like to say. Also, pointing out which applicants the visa office accounts for in setting monthly visa bulletin dates, which applicants (by contrast) we need to account for in estimating visa wait times, and what all that means for predicting future action dates. But instead, I made a picture. I hope that just looking at this image can help conceptually. After examining the picture, you may want to consult this presentation and my data summary for most recent available estimates of the number of applicants hidden in the EB-5 process clouds (not yet on the Visa Control radar, but important for us because determinative for future visa bulletins). And then if you still really wish you had an article about the Visa Office perspective behind visa traffic control, I recommend Note F in the November 2021 Visa Bulletin, this article, and the Chat with Charlie for the April 2021 visa bulletin.

Filed under EB-5 Resources, EB-5 Statistics

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Winners in 2023/2024 EB-5 visa issuance

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USCIS Update to Visa Availability Approach for Form I-526 (quoted as of July 18, 2023)

Updating policy, forms and guidance based on the new law

Prescribing regulations required by the new law

Monitoring and enforcing regional center compliance with new requirements

Implementing visa availability changes

Other requirements

Other questions

FY2022 EB-5 Visa Issuance and Wastage

Reasons for FY2022 EB-5 Visa Wastage

High Volume of EB-5 Status Adjustments in FY2022

RIA Implementation, Reserved Visas, and Country Caps

Country Diversity

Visa Demand Context

Tables based on the Annual Report of the Visa Office

Who needs to pay the new EB-5 Integrity Fund fee, and when?

What does the USCIS fee policy imply about USCIS treatment of previously-approved regional centers?

What will happen to any regional center that does not pay the EB-5 Integrity Fund fee by March 31, 2023?

What is the required amount of the EB-5 Integrity fee? What does the fee policy imply about who’s an investor, and what’s the investment period?

Do we have a chance to provide feedback on the fee policy?

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