EB-5 $800K Direct Investment I-526 Processing Model

Illustrative Video of Form I-526 Processing by USCIS

EB-5 $500K Direct Investment I-526 Processing Model

On June 30, 2021, the U.S. Congress failed to reauthorize the EB-5 regional center program, allowing it to lapse. As a result of the program’s suspension, United States Citizenship and Immigration Services (USCIS) is not accepting any I-924 petitions set up new regional centers or any I-526 petitions associated with regional center investments—and it has halted processing any such petitions that are already pending.

The EB-5 visa program itself, however, remains available since it does not require congressional reauthorization, which is good news for foreign nationals interested in the EB-5 program.

The suspension of the regional center program has created a limited-time opportunity for direct EB-5 investment at $500,000. Because new and pending applications for regional centers and related investments are not being processed, direct EB-5 investment applications are being processed more quickly.

How long do potential investors have to take advantage of this opportunity?

No one knows for certain. We have, however, developed a model to help assess this window of opportunity for direct EB-5 investment.

Key Model Variables

Our model takes into consideration four key variables, as follows:

  1. The date of regional center program reauthorization. This is the key variable in modeling how long direct I-526 petitions will receive focused processing attention.
  2. The number of direct EB-5 petitions already in line to be processed.
  3. The amount of attention direct I-526 petitions will receive. The level of staffing USCIS has allocated to direct I-526 petitions will determine how many petitions they process in a given period.
  4. The number of direct I-526 petitions being filed.

Below, we will examine these variables and describe the assumptions our model makes for each one.

Reauthorization Date

Our model considers the current deadlock in Washington, D.C., and recognizes that reauthorization of the EB-5 regional center program is unlikely to happen immediately—probably not within the next week or two as of the date of this writing.

At the same time, our model assumes that time is short and that the Regional Center program is likely to be reauthorized in a matter of months.

For the purposes of our modeling, we set a hypothetical reauthorization date of January 31, 2022.

Pending Petitions

According to USCIS, 12,798 I-526 cases were pending as of June 30, 2021.

Historically, about 95% of EB-5 investments are in projects sponsored by regional centers, and so by eliminating the estimated regional center petitions from the total number of pending cases, we expect that about 640 direct EB-5 petitions were already pending when the regional center program was suspended (12,798 x 0.05 ≈ 640).

Historic Processing Speeds and Current Processing Volume

During Q3 of FY2021, USCIS processed a total of 727 I-526 petitions. This figure represents the lowest number of I-526 petitions processed in a given quarter since Q1 of FY2020. Because it is a lower number, and because it is the most recent number available, we believe it reflects a reasonable starting point to estimate current I-526 processing volume.

We do not know what level of staffing USCIS has allocated to processing direct I-526 petitions. We find it unlikely that staffing for I-526 petition processing is at 100%, but we also find it unlikely that staffing would be below 50%.

Our model assumes a conservative staffing level of 50%, which would mean a processing volume of about 363 direct petitions per quarter—or 121 petitions per month (727 x 0.5 / 3 ≈ 121).

New Petitions

As of yet, no data is available showing how many I-526 petitions are being filed since the regional center program was suspended.

According to USCIS, from Q1 of FY2018 through Q4 of FY2020, an average of approximately 416 I-526 petitions were filed per month. If historically only 5% of those were direct I-526 petitions, then approximately 20 direct I-526 petitions are filed per month on average.

With direct petitions being the only option at the moment, we expect a rise in direct I-526 filings. How significant will this rise be? We can only guess.

We believe it is fair to assume that direct petitions may as much as double. We suspect, however, that the increase in petitions at this time is likely to be limited because many investors are simply not interested in the direct EB-5 investment model and prefer to wait for the regional center program to be reauthorized—and are able and willing to invest $900,000 or more.

For the sake of our model, we estimate that 40 direct I-526 petitions will be filed per month on average, starting in July 2021.

Model Output and Conclusions

So, assuming that (1) the regional center program will not be reauthorized until January 31, 2022, or later, (2) on June 30, 2021, a total of 640 direct I-526 petitions were pending, (3) USCIS is processing about 121 direct petitions per month, and (4) an additional 40 direct petitions have been filed per month starting in July, the estimated final date on which a direct I-526 petition could be filed and be likely to move from the queue onto an adjudicator’s desk is December 10, 2021.

Based on the assumptions given above, then, investors who file direct I-526 petitions on or before December 10, 2021, would have their petition being actively processed by USCIS before January 31, 2022.

Of course, the regional center program may not be reauthorized for months after January 31, 2022. Or it could be reauthorized sooner. More petitions might be submitted—or fewer.

In any event, the key takeaways are (1) the current $500,000 investment amount is not guaranteed in the future, and (2) the sooner an investor files his or her direct I-526 petition, the more likely that the investor will benefit from the current suspended processing of I-526 petitions filed under the regional center program. The window may only be open for a few more weeks.