In March 2020, Sarah Kendal, the chief of the Immigrant Investor Processing Office (IPO), announced that the office was more equipped than in FY2019 to process EB-5 petitions. This announcement constituted great news for the EB-5 community and appeared to be true, as data from FY2020 Q2 illustrated an increase in petition processing. However, a truly accurate portrayal of EB-5 petition processing will require data from the latter two quarters of FY2020. Although the IPO’s prediction of increased productivity seems to be holding true, there are other factors that may point in the other direction.
For example, the USCIS’s estimated processing time range is not overly reassuring for EB-5 investors. In May 2020, the estimated processing range for I-526 petitions was 29.5 to 44.5 months. As of July 2020, the range for I-526 petitions increased to a range of 46 to 74.5 months, nearly doubling in the two-month period. While these processing time ranges do not look encouraging, it is important for investors to understand what the ranges actually represent.
The good news is that the majority of EB-5 investors do not have their petitions adjudicated in the estimated time range. The lower number in the range is the time by which 50% of investors have their petition adjudicated, and the higher number in the range is the time by which 93% have their petition adjudicated. Therefore, only 43% of investors receive adjudication within the given range, which means many EB-5 investors can expect a faster adjudication than the estimated processing time range suggests.
The Reason Behind the Increase in Processing Time
Many assume that the increase in processing time is a result of the IPO processing less I-526 petitions. However, this is not always the case. Because some I-526 petitions are left unadjudicated for years, the IPO could be taking measures to prevent applicants from filing inquiries or possibly pursuing litigation. Focusing on these petitions could lead to longer wait times for new applicants.
Investors should also remember that USCIS does not factor the new visa availability approach into its estimated processing ranges. As of April 2020, the IPO prioritizes I-526 petitions based on the number of readily available visas for the applicant’s country. This means that investors from countries without a visa backlog could experience much shorter processing times than investors from backlogged countries. Because this approach is new, an accurate picture of EB-5 processing cannot be drawn until processing data from FY2020 Q3 and Q4 is released.