The EB-5 Immigrant Investor Program, which offers foreign nationals the opportunity to obtain U.S. permanent resident status through an investment in the U.S. economy, has not escaped the far-reaching effects of the COVID-19 pandemic. The most notable impact is the closure of United States Citizenship and Immigration Services (USCIS) offices in the United States and the suspension of routine visa services at U.S. consulates and embassies across the globe, which have stalled the EB-5 visa process for both domestic and overseas EB-5 investors.
Filing an I-526 Petition
The first step of the EB-5 visa process is filing an I-526 petition. This process may take several weeks to several months, depending on each EB-5 investor’s specific situation. Two factors that affect how long it takes to prepare and submit an I-526 petition are how much due diligence the investor needs to conduct and how difficult it is for him or her to prove that the EB-5 funds were obtained lawfully. Given the complexity of this process, EB-5 investors should consult with an immigration attorney to ensure that they satisfy all the requirements.
Processing Time for I-526 Petitions
In response to COVID-19, USCIS closed its offices to the public until June 4 at the earliest. The Immigrant Investor Program Office (IPO), which processes I-526 petitions, has been operating normally, as it is not a public-facing entity.
In 2018, USCIS estimated that processing times for I-526 petitions would take, on average, 20–26 months. However, the detailed processing data included in its FY2019 Q1 report showed this estimate to be inaccurate, as only 20% of petitions were processed within that time frame, and most were processed in less than 20 months. This is in line with the historical processing time data USCIS also put out, which indicate that the average processing time for I-526 petitions from October 1, 2019 to January 31, 2020, took a little over a year. Therefore, it may be possible for EB-5 investors to receive a decision more quickly than the expected two years.
Another factor that may affect processing time is the USCIS’s implementation of a visa availability processing approach for I-526 petitions on March 31, 2020. I-526 petitions are now prioritized according to the availability of EB-5 visas for the investor’s country of origin rather than when the petition was received. Based on the April 2020 Visa Bulletin, EB-5 investors from Mainland China may have to wait longer for their I-526 petitions to be adjudicated, while investors from other countries may see a decrease in their wait times.
After I-526 Petition Approval
EB-5 investors from countries without a backlog can file their visa application as soon as their I-526 petitions are approved. However, investors from countries with a backlog will need to wait for their priority date to be on or before the final action date to do so. For the affected investors, this can add anywhere from several months to years to the EB-5 process. As of April 2020, the only countries with backlogs are China, India, and Vietnam.
DS-260 Form and I-485 Petition
EB-5 investors residing outside of the United States can file the DS-260 form at their local U.S. consulate or embassy to apply for a U.S. green card once they have been contacted by the National Visa Center (NVC). As U.S. consulates and embassies around the world are currently closed due to COVID-19, this mean that EB-5 investors living abroad will need to wait to file their visa application.
EB-5 investors residing in the United States under a different visa do not need to visit a U.S. consulate or embassy to file a visa application. They only need to file an I-485 petition to modify their immigration status. For these investors, COVID-19 will have little effect on their EB-5 visa process, unless they are required to visit a USCIS office.