The USCIS Public Engagement About the Visa Availability Processing Approach

United States Citizenship and Immigration Services (USCIS)’s March 13 public engagement on the new visa availability approach to the processing of I-526 petitions offered valuable insights into how the EB-5 program may look in the future. Anyone who wished to participate could do so via teleconference, and USCIS was happy to front their questions.

Sarah Kendall, Chief of the Immigrant Investor Program Office (IPO), and Charles Oppenheim, Chief of the Visa Control and Reporting Division from the Department of State, led the conference. They provided valuable information on not only the new visa availability I-526 processing approach but also the EB-5 Modernization Regulation. At the end of the public engagement, the public was invited to ask questions, and it was during this period that the most interesting information emerged.

The New I-526 Processing Method

The reason USCIS has implemented this new I-526 processing method seems to be to align the EB-5 program more closely with other visa programs and ensure the EB-5 visa allocation better matches Congress’s goals. According to Kendall, the new approach focuses on I-526 petitions whose investors are eligible to apply for an EB-5 visa immediately or almost immediately upon approval.

The new processing approach went into effect on March 31, 2020, and, naturally, will be applied to all I-526 petitions that USCIS receives after March 31, 2020. Petitions received but not assigned before March 31 are also subject to the new processing rules. If you have received a request for evidence (RFE) or notice of intent to deny (NOID), however, your place in line will not be impacted.

The Victims of the Visa Availability Approach

Kendall announced in the public engagement that under the new I-526 processing approach, the IPO intends to use the monthly visa bulletin’s Chart B Dates for Filing to assign petitions for adjudication. Petitions will be assigned for adjudication if the EB-5 investor would be eligible to apply for a visa that month.

Indian and Vietnamese EB-5 investors may breathe a sigh of relief upon hearing this news—USCIS’s use of the Chart B dates means the only investors affected are those from Mainland China. Chinese investors may now find themselves waiting longer to have their I-526 petition adjudicated, but Indian and Vietnamese investors have escaped the bullet and could potentially even see faster adjudication times. This advantage may be short-lived, however, because Indian and Vietnamese investors are subject to a backlog in Chart A and may follow suit in Chart B if the EB-5 demand in these countries continues to outpace supply.

EB-5 investors from underrepresented countries must be aware that the adoption of the visa availability approach does not guarantee faster processing times, as it merely determines which I-526 petitions UCSIS will not adjudicate. Only time will tell which countries will benefit the most from USCIS’s new processing method.

The Rare Exceptions

USCIS is dedicated to using the new visa availability method except in two cases: expedite requests and spousal nationality. USCIS has indicated its intention to process expedite requests even if the investor would be held back due to the visa availability system. Similarly, if an EB-5 investor from a backlogged country has a spouse from an underrepresented country, the couple may use the spouse’s nationality to push the adjudication forward. In such cases, an email to the IPO explaining the situation will suffice.

No Changes to Total Available Visas

According to the information revealed in the public engagement, there will be no changes to either the total number of EB-5 visas available or the per-country allocation. One of the objectives of the new approach is to reduce the number of leftover visas each year, but Oppenheim stated that he does not believe this number will decrease significantly for another year to a year and a half.

FY2019’s Low Processing Volumes

While the visa availability approach certainly has the power to minimize investors’ wait times until I-526 adjudication, in reality, it may not result in faster processing. Kendall specifically dodged any questions about the I-526 backlogs, explaining that IPO does not discuss such figures publicly. According to her, FY2019’s remarkably low processing volumes are attributable to the IPO’s ramping up of anti-fraud measures. Kendall emphasized how important anti-fraud measures are in the EB-5 program, implying that FY2020’s processing volumes may not be that much higher.

The End of Indian Backlogs

The public engagement also brought welcome news for Indian EB-5 investors: If current trends continue, USCIS expects the Indian backlog to disappear by summer 2020. EB-5 demand in India has been steadily decreasing in recent months, and USCIS does not anticipate any new Indian backlog in the foreseeable future. Already, the final action date for Indian investors has leaped forward in the past few monthly visa bulletins.

The Impact of COVID-19

2020 is introducing multiple changes to the EB-5 program, and not all of them were planned. In addition to the new visa availability program, the EB-5 program also faces disruption from the COVID-19 pandemic sweeping the globe. Around the world, borders are closed and consulates have suspended operations, including the U.S. consulate in China. This has prevented the final action and filing dates for Chinese EB-5 investors from advancing and leaves Chinese investors ineligible to receive leftover visas, which the IPO has decided to grant to Vietnamese investors for the time being.

No additional questions about the impact of the COVID-19 crisis on EB-5 operations came forward during the public engagement, but as the deadly virus continues to shut down public life around the world, further disruptions should be expected.

Extras

  • When asked about investors from travel ban countries, Kendall and Oppenheim refrained from offering a public answer and simply asked individual investors affected by such bans to email their inquiries to USCIS.
  • There is now an FAQ page for the EB-5 Modernization Rule on the USCIS website.
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