Beginning in March 2020, United States Citizenship and Immigration Services (USCIS) adopted the visa availability approach in deciding which order to adjudicate I-526E petitions. This model prioritizes I-526E petitions by EB-5 applicants for whom an EB-5 visa is either immediately or soon to be available.
With the former first-in, first-out (FIFO) method, USCIS adjudicated I-526E petitions in the order in which they were filed. As a result, in many circumstances EB-5 applicants without visa numbers available would have their I-526E petitions processed ahead of those with visa numbers available, due to the fact that the earliest filed petitions were generally from oversubscribed nationalities.
Historically, China has been considered an oversubscribed country, with the demand of EB-5 visas originating from China exceeding the number of available EB-5 visas for allocation. Currently, China’s backlog is significant followed by India.
While USCIS had previously used the FIFO method to determine the order in which to assess I-526E petitions, the switch to the visa availability approach reportedly “better aligns the EB-5 program with congressional intent” and “makes it more consistent with other USCIS operations”, according to a news release on the USCIS website. In the same news release, USCIS Deputy Director Mark Koumans goes on to explain that the visa availability approach gives eligible EB-5 investors from traditionally underrepresented countries a fairer chance at receiving EB-5 visas without having to undergo overly lengthy processing times.
The visa availability approach takes into account the EB-5 investor’s country of birth, which is information they should provide on their I-526E petition, as well Chart B of the Department of State Monthly Visa Bulletin, which shows visa availability for the petitioner’s home country. USCIS uses these two factors to calculate the order in which to assess I-526E petitions.
However, the EB-5 Reform and Integrity Act of 2022 (RIA) introduced another aspect to the order of I-526E petition processing. It established new visa set-aside, through which new applicants from traditionally backlogged countries can enjoy remarkably short processing times. Under the RIA, 32% of the total yearly quota of EB-5 visas are reserved as set-aside visas-20% for investment in rural areas, 10% for investment in high-unemployment regions, and 2% for investment in designated infrastructure projects.
Rural EB-5 investment also qualify for the priority processing of Form I-526E by USCIS. Among all EB-5 investment categories, petitions from rural TEA projects are processed first, offering the shortest adjudication times for rural EB-5 investor.
