United States Citizenship and Immigration Services (USCIS) has released the EB-5 investment program’s processing data for FY2021 Q1 (October–December 2020). This data closes out the 2020 calendar year, which saw the inception of the COVID-19 pandemic. While this data was undoubtedly affected by 2020’s unique circumstances, it still provides valuable insights for EB-5 investment participants, as it covers the receipt, approval, and denial rates for both I-526 and I-829 petitions.
Data from I-526 Petitions
USCIS did not include information on I-526 petition receipts in the latest data release. The data table had a “D” in the FY2021 Q1 column of I-526 receipts, which signifies that the “data [was] withheld to protect applicants’ privacy.” Although we do not know with certainty how many I-526 petition receipts there were, historical trends suggest that this figure was low. Calendar year 2020 saw very few I-526 petitions filed, initially due to the massive number of investors who filed their EB5 investment applications before the Modernization Rule came into effect in November 2019, raising the minimum investment amounts by 80%.
Denials and Approvals
The number of adjudicated I-526 petitions remained low throughout calendar year 2020, including FY2021 Q1. In fact, this has been true throughout Sarah Kendall’s tenure as Immigrant Investor Program Office (IPO) chief. While I-526 approvals went slightly up in FY2019 Q3, the figure remained incredibly low compared to before Kendall took charge. However, it appears that FY2021 Q1 marked the end of Kendall’s role in charge of the IPO, as Kendall’s LinkedIn page reveals that she left her role at the IPO in November 2020. If the IPO’s new leadership is more productive, EB-5 investors could see much higher petition figures in the next data release. Further bad news about Kendall’s time at the IPO was that while few I-526 petitions were approved, the IPO kept a similar denial rate to previous years, which has meant that the approval-to-denial ratio decreased, lowering the chance that EB-5 investors received an I-526 approval.
It is clear that the IPO has not been productive in adjudicating I-526 petitions. This is disappointing, given that the COVID-19 pandemic slashed many of the IPO’s duties, meaning that the IPO had more time to adjudicate I-526 filings. FY2021 Q1 was also the first quarter of the EB-5 investment program’s extraordinarily high visa allowance, as the EB-5 program received almost double the typical number of annual EB-5 visas in FY2021. It is troubling that the IPO is not taking advantage of the higher visa allowance.
Fortunately, the quarterly approval rate has increased from FY2020 Q4. If this trend continues, FY2021 will see higher numbers than FY2020. Meanwhile, the I-526 petition backlog went down by 9% in FY2021 Q1.
I-829 Petition Data
There was a shockingly low number of I-829 petition receipts in FY2021 Q1. As I-829 petitions must be filed during the final 90 days of an EB-5 investor’s two-year conditional residency period, I-829 petition receipts should reflect I-526 approval figures from several years prior. Given that FY2017, FY2018, and FY2019 all had high I-526 approval figures, it is concerning that there is such a low number of I-829 petition receipts in FY2021 Q1.
Ultimately, the low number of I-829 petition receipts may be due to USCIS’s gross inefficiencies, as the immigration agency has struggled to issue I-829 receipt notices throughout calendar year 2020. If this theory is correct, FY2021 Q2 may see an increase in I-829 receipts.
Denials and Approvals
FY2021 Q1’s I-829 processing situation was much better than the I-526 processing situation. FY2021 Q1 saw a reduced number of I-829 approvals from the previous three quarters, although this number was still higher than quarterly figures from previous years.
I-829 denials figures were higher during Kendall’s tenure compared to previous IPO chiefs. However, the I-829 processing increase compensates for the comparatively higher denial figures. The I-829 approval-to-denial rate was slightly lower in FY2021 Q1, although it remained higher than historical rates. Ultimately, while the FY2021 Q1 I-829 processing data is promising, the future situation entirely depends on the new IPO leadership.
FY2021 Q1’s I-829 processing figures reveal that the IPO processed more petitions than in previous years, although I-829 adjudication dropped by 12% in FY2021 Q1 compared to FY2020 Q4. EB5 investment stakeholders can remain hopeful that the IPO’s new leadership will maintain a high I-829 processing speed.
FY2021 Q1 also saw a 4% reduction to the I-829 backlog. This figure is promising, as the I-829 backlog steadily increased from FY2013 to FY2020.
I-526 and I-829 Processing Data Comparison
FY2021 Q1 saw I-526 petition processing continue to underperform, while I-829 petition processing continued to overperform. Ultimately, FY2021 Q1’s data release shows the same trends as FY2020 Q4, although both I-526 and I-829 processing figures are slightly down. Backlogs in both categories remain essentially unchanged from the earlier period.
EB-5 investment stakeholders will have to wait until the release of FY2021 Q2’s data to determine EB-5 demand, as this data release did not include I-526 receipt data.
The COVID-19 pandemic, among other factors, makes it difficult to predict the EB-5 investment program’s figures. The pandemic could affect processing speeds, while EB-5 demand could remain low given the 80% increase in the minimum EB-5 investment amount. On the other hand, Sarah Kendall’s departure from the IPO could improve the situation, depending on new chief Nick Colucci’s leadership.
Hopefully, FY2021 Q2’s data release will provide insights into all of these questions. Until then, EB-5 industry representatives should focus on the potential termination of the EB-5 Regional Center Program, which has a sunset date of June 30, 2021. The EB5 investment program community is supportive of legislation such as the EB-5 Reform and Integrity Act, which would reform the program and extend its authorization for several more years.