Beginning in March 2020, United States Citizenship and Immigration Services (USCIS) adopted the visa availability approach in deciding which order to adjudicate I-526 petitions. This model prioritizes I-526 petitions by EB-5 applicants for whom an EB-5 visa is either soon to be or immediately available.
With the former first-in, first-out (FIFO) based method, USCIS adjudicated I-526 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-526 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, while demand from India and Vietnam is increasing substantially; Department of State (DOS) will likely impose cut offs on both nationalities in the near future.
While USCIS had previously used the FIFO method to determine the order in which to assess I-526 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-526 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-526 petitions.
