With a marked slow-down in USCIS processing of EB-5 petitions over the past few years, many have started to believe the existence of an agency-wide tacit policy of “non-adjudication” intended to deter immigration. And unfortunately for USCIS, the current processing times for EB-5 petitions (Form I-526 and Form I-829), as well as the application for adjustment of status (Form I-485 that is based on an approved I-526), seem to support these speculative internal policies.
As lawyers, we avoid operating based on speculations. However, it is hard to argue that there hasn’t been an across the board decrease in adjudications. When it comes to employment-based petitions, the unexplained slowdown in processing seems most noticeable in the EB-5 field. In FY 2019, the last year for which complete processing data is available, the Immigrant Investor Program Office (IPO) adjudicated 3,659 I-526 petitions. Two years prior, in FY 2017, IPO adjudicated 11,321 I-526 petitions.
This is a marked decrease that is not supported by changes within the IPO staffing levels or other factors having impact on USCIS processing capacity. The I-526 processing statistics in FY 2020 show no improvements in processing volume; in Q1 and Q2 FY 2020 (October 1, 2019 to March 30, 2020) – prior to the onset of COVID-19 pandemic in the western world – the IPO adjudicated 1,359 I-526 petitions and 1,223 I-829 petitions. These numbers are less than 25% of IPO’s operating capacity observed in the recent years.
In addition, the most recent update to USCIS “normal” processing time Form I-829 indicates that processing can take up to 234 months. While this is a misleading statistic (the reasons for which are beyond the scope of this article), it is nonetheless a demoralizing one. By declaring that an I-829 petition can take up to 234 months to be adjudicated, the IPO has taken away the possibility of case-status inquiry for all I-829 petitioners.
Faced with such dismal processing statistics and decades-long processing times, it is not surprising that many in the EB-5 industry are hoping that a change in Presidential administration will bring an end to the IPO’s apparent modus operandi rooted in avoidance and stall tactics. Our clients from across the world see a change in the Presidential administration as a possibility for the improved operations of the EB-5 program. The EB-5 industry as a whole has suffered in the last five years starting with a visa backlog for Chinese investors, troubling news of several major fraud and embezzlement cases, various travel bans and finally an increase in investment amount coupled with a world-wide pandemic that has crippled many economies. So, for many of us, it’s hard not to look to January 20, 2021 and see the light at the end of the tunnel.
Since the Presidential election, many of our EB-5 clients have called wondering what practical impact a change in the administration may have on their immigration. The only answer we can decisively give to EB5 investors and projects is that no one knows. Will the EB-5 program be allowed to reclaim unused visa numbers from the past years? Will country-specific travel bans be lifted? Will there be at least a temporary rollback of the required investment amount to $500,000? Will processing times improve so capital investments are not held hostage in EB-5 redeployment funds but utilized by investors to spur the economic growth and post-pandemic recovery?
We can’t give decisive answers to these questions, but we do hope that at least some if not all of these changes happen in 2021. We caution our clients not to expect major changes overnight. With any luck, however, EB5 investors and projects will begin to see positive changes in program administration and processing times in 2021, which will eventually redirect the program to its intended path of increasing foreign investment in the US and creating opportunities for all.