How new legislation and new petitions are expediting the filing process for Form I-526/I-526E.
The EB-5 visa process allows for an EB-5 immigrant investor to be approved for conditional permanent residency status in the U.S. and eventually receive a green card. Although current I 526 processing times still reflect processing problems brought about by the COVID-19 pandemic, new laws and greater funding are allowing United States and Citizenship and Immigration Services (USCIS) to cut down the backlog and reduce processing times.
The Role of USCIS
USCIS is an agency of the United States government in charge of adjudicating and processing all types of immigration and naturalization, including green cards, citizenship, refugee status, political asylum seekers, work visas, and more.
USCIS handles processing, approvals, and inquiries for the entire EB-5 visa process.
USCIS is a part of a trio of federal immigration agencies created by the Homeland Security Act of 2002 to replace the former Immigration and Naturalization Services (INS).
Immigration and Customs Enforcement (ICE) and Customs and Border Protection (CBP) are concerned mostly with law enforcement of immigration violations and safeguarding points of entry to the United States.
All three agencies are administered by the Department of Homeland Security (DHS), also created by the Homeland Security Act of 2002.
What are the I-526 and I-526E Petitions?
On March 15th, 2022, President Biden signed the EB-5 Reform and Integrity Act into law. This bill made many changes to the EB-5 visa process. In order to improve I 526 processing times following the Reform and Integrity Act, USCIS divided the I-526 petition into two separate forms:
- Form I-526, Immigrant Petition by a Standalone Investor;
- Form I-526E, Immigrant Petition by a Regional Center Investor.
Both Form I-526 and Form I-526E are petitions to demonstrate an EB-5 investor’s compliance with the various requirements of the EB-5 visa process. Investors must also provide supporting evidence and documentation of their EB-5 compliance, to be filed concurrently with their I 526 petition.
What is Form I-526, by a Standalone Investor?
Form I-526, Immigrant Petition by a Standalone Investor, is for EB-5 immigrant investors who are directly investing their EB-5 capital in a qualifying new commercial enterprise (NCE) by themselves. This means that the investor is not pooling their money with any other investors through the EB-5 Regional Center Program.
This type of EB-5 investment is known as a “direct investment”, because the new commercial enterprise itself must directly create the required 10 full-time jobs. In other words, the NCE itself must be the direct employer of the qualifying employees whose jobs were created by the investor’s EB-5 capital.
For example, an EB-5 investor invests in a new hotel under construction seeking EB-5 funding. This means that the EB-5 participant must demonstrate on their I-526 application that they have invested the required minimum amount, and that their capital investment directly created 10 employees–for example, front desk, housekeeping, maintenance, or other guest services workers– who work directly for the hotel.
What About EB-5 Projects Located in a TEA?
If the aforementioned example EB-5 investment were made in an NCE located in an area designated as a targeted employment area (TEA), the minimum EB-5 investment amount would be $800,000 instead of $1,050,000. This amount is lowered because USCIS and the U.S. government both want to encourage economic investment and growth in such areas, and are offering a lower rate of investment to make said investments more attractive to EB-5 investors.
The official USCIS Policy Manual on the USCIS website defines TEAs as:
“A rural area or an area that has experienced high unemployment. A rural area is any area other than an area within a standard metropolitan statistical area (MSA) (as designated by the Office of Management and Budget) or within the outer boundary of any city or town having a population of 20,000 or more based on the most recent decennial census of the United States.”
In order for a particular TEA to be designated as an area of “high unemployment”, it must have an unemployment rate at least 150% higher than the national average. The $800,000 minimum threshold is also available for EB-5 projects designated as infrastructure projects.
What is Form I-526E for Regional Center Investors?
Form I-526E, Immigrant Petition by a Regional Center Investor, is for EB-5 immigrant investors who are pooling their money with other qualifying immigrant investors through the EB-5 Regional Center Program.
The USCIS website defines an EB-5 regional center as
“an economic unit, public or private, in the United States that is involved with promoting economic growth”.
Such economic growth is made through pooled investments. The USCIS website further states that the goals of the regional center program include increased domestic capital investment, as well as creating new long-term jobs in a particular geographic area.
EB-5 participants investing in NCEs located within a regional center can also count indirect jobs toward fulfilling the employment criteria.
What Are Indirect EB-5 Investments?
The USCIS website defines the difference between direct and indirect EB-5 jobs as follows:
- “Direct jobs establish an employer-employee relationship between the new commercial enterprise and the persons it employs.”
- “Indirect jobs are held outside of the new commercial enterprise but are created as a result of the new commercial enterprise.”
What if, in the aforementioned investment in the hotel project seeking EB-5 capital, the investment was made through a pooled investment in a regional center?
In this instance, the immigrant investor can demonstrate on their I-526E application that up to 90% of the full-time jobs created using their EB-5 capital were indirect jobs. Examples of indirect employment in the hotel case include construction workers directly employed by a separate construction company, which has in turn contracted its services with the hotelier to build the hotel.
However, although the construction workers themselves are not directly employed by the hotel itself, the individual EB-5 investor can still claim 9 of their necessary 10 jobs created to be the construction workers; even though their EB-5 investment was made directly with the hotel, not the construction company. This is because their investment was a pooled investment made through a regional center. Indirect jobs created as a result of the project’s overall economic impact can also be counted.
Why Do I Need an I-526/I-526E Petition?
USCIS needs to determine if an EB-5 immigrant investor has legally complied with all the requirements of the EB-5 visa program.
But there are so many available pathways for investment– hundreds of potential NCEs, various regional centers, two types of TEA designation– and immigrant investors are applying from a vast array of foreign countries.
USCIS needs to carefully examine each particular investor’s individual I-526 petition, as well as any supporting documents additionally supplied to support the validity of their case. This important step can take time.
What Are the Requirements for Form I-526/I-526E?
An EB-5 immigrant must prove the following on their I-526 petition:
- The applicant has made the minimum required investment of $1,050,000 in an NCE, or $800,000 if the NCE is located in a TEA.
- All funds used for the capital investment were lawfully obtained.
- Must demonstrate exactly how their EB-5 capital was used to create at least 10 positions.
- Must demonstrate that the investor is involved in managing the NCE.
If an EB-5 investor makes a direct investment in an NCE, they may manage the entire commercial entity, join the board of directors, or simply demonstrate actual day-to-day involvement with the operations of the business.
If an EB-5 participant invests in an NCE through a regional center, these pooled investments are usually structured as either limited partnerships (LPs) or limited liability companies (LLCs). This means that the investor is considered a limited partner in the management of the commercial enterprise, which in itself satisfies the direct involvement condition.
How to File an I-526/I-526E Petition
Who Files an I-526 Petition?
An EB-5 investor’s immigration attorney usually files Form I-526 or Form I-526E on the investor’s behalf.
This is a crucial and complicated step in the EB-5 immigrant investor process that involves a lot of supporting documentation, which can differ between forms. An immigration attorney is the best person to ensure that each individual EB-5 investor is filing their I-526 or I-526E petition correctly with USCIS, including all supporting documentation.
The filing fee is $3,675. The fee is the same whether an investor is filing Form I-526 or Form I-526E.
This amount is current as of the June 1st, 2022, update to USCIS’ official filing instructions for both forms. Filing fees do change over time. EB-5 investors can always check the latest filing fees on the USCIS website.
The filing fee should be in the form of a check or a money order drawn from a U.S. bank or financial institution in U.S. currency. The filing fee is non-refundable, no matter what action USCIS does or doesn’t take with regards to an investor’s I-526 or I-526E petition.
Make the money order or check payable to: U.S. Department of Homeland Security.
Original checks will not be returned. If a check comes back unpayable two times, an investor’s entire I-526 petition will be rejected and the investor will be charged a returned check fee. Investors living outside the United States can contact their nearest U.S. Embassy or Consulate for instructions on how to submit payment.
Additional Fees for Form I-526E
EB-5 regional center investors filing Form I-526E must also submit a separate check for $1,000, as required by the EB-5 Reform and Integrity Act of 2022.
According to the bill, this fee is to provide additional support for the EB-5 Integrity Fund in the U.S. Treasury, which finances the adjudication of EB-5 petitions as well as investigations into investor and regional center compliance.
With this additional fee, USCIS will be able to allocate more resources to process petitions more quickly.
The following supporting documents are examples of what must be filed with an investor’s I-526 or I-526E petition, when applicable:
- Submit a photocopy of their passport or other government-issued photo identification.
- Investors must submit background information such as net worth, employment history, any fees or costs transferred between the investor and their regional center or NCE, and proof of compliance with U.S. work and immigration laws.
- Job Creation
- A comprehensive business plan for the NCE demonstrating when the employees will be hired must be submitted, along with tax records, Form I-9s and other documents for employees.
- Lawful Business Entity
- Organizational documents for the NCE; such as copies of the partnership agreement, articles of incorporation, or certificate of limited partnership, certificate of consolidation, joint venture agreement, proving the investor is a real investor in a legal commercial enterprise.
- Stock purchase agreements, payroll records, investment agreements, or other similar documents proving that the influx of the required EB-5 capital investment resulted in a substantial increase in employees or net worth.
- Lawful Capital
- Tax returns within the last seven years, foreign business registration records, evidence of all civil, criminal, or administrative actions involving monetary judgments within the last 15 years, or other evidence of sources of capital. For gifted or borrowed EB-5 funds, submit evidence that the donor obtained the funds through lawful means and these were gifted in good faith.
- Bank statements showing the investor’s deposits in the NCE’s U.S. bank accounts, escrow account records, promissory notes, loan or mortgage agreements; or other evidence of NCE borrowing secured by the petitioner’s personal assets.
- Targeted Employment Area
- Submit the latest demographic data showing rural or high unemployment TEA status.
- Investment in a USCIS Regional Center (I-526E only)
- A copy of the receipt notice from the regional center’s I-956F petition filing.
Combined Filing with Form I-485
Forms I-526 and I-526E can now be filed concurrently with an I-485 petition for adjustment of status.
This option is available to investors whose country is listed as “C” or “current” on the Visa Bulletin. This welcome change eliminates the additional wait time for I-485 adjudication, and allows non-resident EB-5 participants to live, work, or attend school in the U.S. while waiting for their I-526 or I-526E petitions to be adjudicated.
The filing fee for Form I-485 is $1,140.
This filing fee is current as of the July 15th, 2022 update of the official USCIS I-485 filing instructions. Although an I-485 petition can be filed at the same time as Forms I-526 and/or I-526E, the separate fees cannot be combined. EB-5 investors must submit two separate checks or money orders, one for each fee, when concurrently filing Form I-485 and I-526/I-526-E.
What Can You Do When Your I 526 Processing Time Is Taking Too Long?
I 526 processing times have become longer since the COVID-19 pandemic. However, with USCIS still working to return to pre-pandemic levels of efficiency, very long I 526 processing times are still the norm for many EB5 investors.
How Long Are I 526 Processing Times?
As of October 14th, 2022, the wait time to adjudicate 80% of I-526 or I-526E petitions is listed as 52.5 months. For residents of China, that number is even higher, at 80 months. Still, investors may have their petitions processed in less time than these estimates.
Investors can find the latest updates of this data at any time on the official processing times page of the USCIS website. This estimated processing time is updated every six months.
Why Does I-526 Take So Long to Process?
I-526 petitions are extremely complicated filings to adjudicate, especially with the tons of unique additional documentation and evidence which must be analyzed by the immigration services.
The massive buildup in the I-526 backlog is partly due to the two-year global pandemic. For most of FY 2020 and 2021, all U.S. consulates and embassies were shut down, as well as nearly all immigration services.
While Congress has ensured that USCIS is certainly on the path to reducing its processing times, the current processing times can create serious consequences for EB-5 investors awaiting approval.
The longer an investor has to wait for I-526 adjudication, the more likely it is that their NCE could face unexpected business troubles. This could potentially jeopardize an investor’s compliance in the eyes of USCIS. Investors’ unmarried children under the age of 21 could also age out of the EB-5 program before USCIS grants I-526 approval. All of these issues could pose an immigration risk to investors.
What To Do If Your I-526 Petition Is Taking Too Long
USCIS only allows inquiries if an investor’s I-526 adjudication is taking significantly longer than the currently listed I 526 processing time on the USCIS website.
How to Make an Inquiry
To find out if their petition is eligible for inquiry, an EB-5 participant should:
- Go to the USCIS processing times page.
- Choose Form I-526 from the dropdown menu.
- Enter their I-526 filing receipt number.
If the investor’s petition adjudication is eligible for inquiry, a prompt will appear with further instructions about how to send an inquiry to the Immigrant Investor Program Office, the office within USCIS that adjudicates EB-5 petitions. Allow 14 days for the office to respond.
New Approach Means Your I-526 Processing Times May Not Take So Long In Future
The EB-5 Reform and Integrity Act of 2022 brings many welcome changes to the EB-5 visa process, and shows that Congress and President Biden are taking huge initiatives to eliminate the delays exacerbated by the COVID-19 pandemic.
As mentioned, USCIS divided the old Form I-526, Immigrant Petition by an Alien Investor into two new forms: Form I-526, Immigrant Petition by a Standalone Investor and I-526E, Immigrant Petition by Regional Center Investor. This, along with an additional $1,000 fee for I-526E petitioners, will surely expand USCIS’ processing capabilities and speed the adjudication process for all investors.
The EB-5 Reform and Integrity Act of 2022 also allows concurrent I-485 filing with petition I-526 or I-526E. This allows investors to adjust their non-resident status to a resident visa while their I 526 petition is still processing.
Concurrent filing eliminates an entire additional long waiting period for EB-5 investors, and allows investors and their eligible family members to live, work, and study in the United States while awaiting adjudication.
In very extreme cases, USCIS also allows for expedited adjudication of an investor’s I-526 or I-526E petition. However, very few EB-5 projects meet USCIS’ qualifications for expedited processing.
According to the USCIS website, the Immigrant Investor Program Office will only consider an expedite request if it meets one or more of the following criteria or circumstances:
- Severe financial loss to a company or person,
- The urgent need must not be due to the petitioner’s own failure to file the benefit request or respond to requests for additional evidence in time.
- Examples include an NCE at risk of laying off other employees due to losing a critical contract, job loss, or an inability to travel for work that will incur severe financial loss. Needing employment authorization does not qualify.
- Emergencies and urgent humanitarian reasons;
- Examples include severe illness, disability, death in the family, critical medical treatment that requires travel in a limited amount of time, or extreme living conditions. Vacations do not qualify.
- U.S. government interests;
- Examples include cases identified as urgent by other federal agencies, such as the U.S. Department of Defense, U.S. Department of Labor, U.S. Department of Justice, U.S. Department of State, and the U.S. Department of Homeland Security.
- Expedite requests from government agencies (federal, state, or local) must be made by a senior-level official of that agency. For expedite requests made by a federal agency, the national interest need must be immediate and substantive. If the need for the action is not immediate, expedited processing is not warranted.
- Clear USCIS error. This is exceedingly rare.
Investors should be advised even if a circumstance fits one or more of the criteria above, that does not mean they will qualify for expedited processing.
If an investor has the opportunity to invest in an EB-5 project with expedited processing approval, such as the construction of a critically-needed research facility, the investor and their family should consider doing so.
With expedited processing for all forms, investors could potentially receive their U.S. green cards in a matter of months, not years.
How to Get Started
Prospective EB-5 participants looking to get started should click the following link for available EB-5 projects. Immigrant investors preparing to file Form I-526 or I-526E should contact their immigration attorney for help with filing. In summary:
- Invest the required amount directly in an NCE or through a regional center.
- Compile all supporting documentation to prove the investment meets USCIS compliance.
- Consult with your immigration attorney for help filling out, mailing, and filing the entire petition packet for Form I-526 or I-526E.
- If your adjudication is taking too long:
- Use the USCIS website I-526 processing times tracker to determine if your case is eligible for an inquiry (taking longer than 93% of all applications to adjudicate)
- Follow the given instructions, as prompted on the USCIS website, to file an inquiry.
- Expedited processing:
- Only available in rare cases, as outlined above. Nearly all expedite requests are rejected.
- Call the USCIS Contact Center, with I-526 or I-526E receipt number on hand.
Contact EB5AN today for help getting started with the EB-5 immigration process and filing your I-526E petition.