USCIS public engagement about new EB-5 processing: what we learned

  • Posted on March 18, 2020 | Updated on March 19, 2020 | 5 min read

On March 13, U.S. Citizenship and Immigration Services (USCIS) held a public engagement meeting to discuss their new “visa availability” approach to processing applications — prioritizing EB-5 applicants from countries that are not backlogged. A positive is that USCIS will look at the visa bulletin Chart B, and not chart A, to make that determination. At the moment, that means only China will be negatively impacted.

The new USCIS processing comes into effect March 31, 2020. It will apply to all new and existing petitions that are not yet assigned to adjudication.

It will replace the “first in, first out” processing that USCIS has been using to this point. Immigration lawyer, Carolyn Lee, writing in an IIUSA article about the engagement meeting, notes that USCIS has not been strictly adhering to the “first in, first out” system because it has been grouping EB5 investment petitions by new commercial enterprise, to avoid duplicate adjudications.

USCIS will be referring to Chart B, Dates For Filing, rather than Chart A, Final Action Dates, to determine which countries have visa availability and which do not. At the time of this publication, using Chart B only excludes China — India and Vietnam are current.

EB-5 expert Suzanne Lazicki observes that using Chart B for the new visa availability approach to processing creates a “chicken and egg situation” due to the following: under the current system, the Visa Bulletin changes according to visa demand that is determined by visa approvals; but the new approach will have visa adjudications being determined by the Visa Bulletin.

Who benefits from the new system?

The visa availability approach will be implemented to help EB-5 petitioners from countries that have visa availability, according to Visa Bulletin Chart B. It should reduce the number of “leftover” visas from countries that are not over-subscribed. Theoretically, this should mean faster processing for such applicants. USCIS states that the new system will better align with the original Congressional mandate of the EB-5 program and will “increase fairness” for EB5 green card investors from underrepresented countries. 

Carolyn Lee comments that, “on its face, there is plain sense in this.” She notes that with the example of a German investor and a Chinese investor both filing on the same date, it allows resources to be more efficiently used on the German investor who may have a visa number issued — while the Chinese investor does not.

The impact on China

Charles Oppenheim stated that only China may see a decrease in available visas before FY 2022. The Chinese Green Card by investment investor population will have to endure longer waits in the future as there will be fewer “leftover” visa given to oversubscribed countries. Caroyln Lee points out that for China to really return to the EB-5 market, statutory change is needed.

India & Vietnam — how are they impacted?

At this time, both countries are “current” according to Chart B of the Visa Bulletin and thus will benefit. But Lazicki points out that these two retrogressed countries will “eventually be held back by VAA [the visa availability approach] since the number of pending I-526 from Vietnam and India will exceed the annual visa limit.”

When will this happen? Lazicki, who is renowned for analysing processing timeliness in spite of the lack of transparency from USCIS, further offers two possible scenarios that could happen to these two countries. In one scenario, she says if many Indian and Vietnamese I-526 petitions are processed and approved, many visas applications will be filed thus creating excess demand that will result in the Department of State putting in cut-off dates in Chart B. And that will mean Indian and Vietnamese I-526 petitions will no longer be available and assigned for adjudication.

In a second scenario, Lazicki states that if USCIS continues to process Indian and Vietnamese USA Green Card petitions at a low rate, there will be a low demand from those countries for visas, and those countries will stay current on Chart B. Lazicki has inferred from Charlie Oppenheim’s comments at the engagement that USCIS foresees the second situation to occur.

Lazicki goes on to say that in either scenario the new visa availability approach should only allow USCIS to process the number of Indian and Vietnamese I-526 petitions that would result in a year’s worth of EB5 USA visas — 350 Indian and 250 Vietnamese adjudications per annum. With current country caps in place, she tells us this means in practical terms long waits for Indian and Vietnamese I-526 applicants as the most recent numbers show us there are 2,500 Indian I-526 petitions pending and 770 Vietnamese.

But this situation is also impacted by the demand from the rest of the world. Lazicki reminds us that demand from non-retrogressed countries has been low and will likely to remain that way with increased investment amounts. Therefore, she says, Chinese, Indian, and Vietnamese I-526 adjudication will only be limited to the degree that USCIS will maximize the I-526 adjudication numbers from other countries.

Material change, terminated regional centers, & backlogged investors

Caroyln Lee points out a further negative for EB5 Green Card investors from retrogressed countries: If such an investor requires an I-526 approval to preserve their priority date because of a material change in their business plan or due to EB5 regional center termination, a delayed approval because of the new system “could be prejudicial indeed.”

Exceptions to the new visa availability rule

Approved expedited requests from any country will continue to be promptly adjudicated. Petitioners from countries that are negatively impacted by the new processing approach have a potential solution: if their spouse is from a country with visa availability, the petitioner should email USCIS detailing their situation.

Aside from the circumstances listed above, petitioners may not opt out of the new visa availability approach. And the new approach is expected to be used indefinitely.

When will the industry feel the impact of the new system?

Charlie Oppenheim stated that the number of available investment Green Card visas would not change for the next 12-18 months.

Will country caps change or visa numbers change?

The new visa availability approach will not mean a change in overall visa numbers or country caps. And, just as before, the policy of unused visas going to oversubscribed countries will remain the same.

Program integrity & processing efficiency— cause for some optimism

During the public engagement meeting, Sarah Kendall did not offer answers about the I-526 petition backlog. She repeated previously published statements about low I-526 processing in 2019: the slowdown was impacted by the mandate to find program EB 5 immigration fraud and abuse. Such multi-agency measures are “absolutely vital.”

Regarding processing efficiency, she also gave some optimistic EB5 news: “With a lot of the infrastructure development now behind us, IPO is better situated to improve productivity. In fact, preliminary data for February shows a step in the right direction.”

Lazicki interprets Kendall’s remarks about integrity measures and hints at recent improvement to mean there will be some minor improvement to processing times, especially with new protocol being implement and training being concluded.

Read Lazicki’s blog on the public engagement meeting

Read Carolyn Lee’s IIUSA on the meeting


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