United States Citizenship and Immigration Services (USCIS), the agency that evaluates each EB-5 investment and ultimately grants approval for the EB-5 visa, is known for its slow adjudication speeds. The first visa petition in the EB-5 investment process, Form I-526, can take a particularly long time to be adjudicated, much to the annoyance of investors eager to relocate to the United States. On certain occasions, investors have even filed litigation against USCIS complaining about the unreasonable delays. Others have filed writ of mandamus lawsuits, which force USCIS to adjudicate a visa petition immediately.
Even though this situation has long been a trademark of the EB-5 investment industry, USCIS’s processing inefficiency can result in serious inconveniences for investors.
Long I-526 Adjudication Times Hinder Investors
It is important to keep in mind that the current minimum EB5 investment amount—$800,00—can often represent the entirety of a family’s hard-earned savings. Moreover, EB-5 investors must incur many other expenses during the process, including USCIS filing fees and immigration attorney fees. Moving to the United States for the two-year conditional residency period also requires a financial commitment. It is thus understandable that investors expect USCIS to process their adjudications as efficiently as possible.
Since the EB-5 visa is extended to each investor, their spouse, and unmarried children under the age of 21, investors with children may be especially eager to have their I-526 petitions processed as soon as possible. If their children age out before USCIS grants approval, they may not be able to obtain EB-5 permanent resident status. It is also important to note that, the longer USCIS takes to adjudicate a visa petition, the more likely it is for an EB-5 business to face an unexpected challenge and fail to meet USCIS standards; in many cases, investors whose I-526 petitions are adjudicated quickly have higher chances of obtaining approval. Moreover, USCIS does not allow EB-5 businesses to make significant changes to their business plans. Business owners may feel more inclined to make such “material changes” as circumstances change over time.
What about investors whose I-526 petitions are ultimately denied due to a real or perceived failure to follow EB-5 investment regulations? In these cases, investors can also benefit from a short adjudication period. If they receive their denial notice sooner, investors will be in a better position to recover their capital from escrow (if such an arrangement is in place), report any fraud on the part of the business owner, or appeal USCIS’s decision.
USCIS’s processing capacity is not the only issue in the EB5 investment industry—in fact, substantial EB-5 reform came into effect on March 15, 2022 and made several important changes. All EB-5 investment stakeholders will certainly benefit from these improvements to EB-5 policies.
