USCIS updates expedite request policy — what it means for EB-5

Posted by EB5Admin on June 17, 2019

    USCIS EB5 expedite request policy update

    USCIS, effective as of May 10, 2019, announced an updated policy regarding expedite requests. The key difference is in the abbreviated list of acceptable criteria: Severe financial loss to a company or person, urgent humanitarian reasons, compelling U.S. government interests, a clear U.S. Citizenship and Immigration Services (USCIS) error.

    Previous criteria were more expansive and included a non-profit organization whose request was in the cultural or social interests of the U.S., as well as the more vaguely named “emergency situation.”

    As the update only refers to government interests that are related to public safety or national security, one can surmise that cultural reasons are no longer compelling enough for the current administration to warrant expedited processing.

    Given President Trump’s overriding focus on national security as it relates to the immigration, it’s easy to see why the latest, more constrained criteria have emerged for the immigrant investor program.

    Investors should always remember that USCIS considers all expedite requests on a case-by-case basis and has the sole discretion to approve or reject a request.

    Immigration lawyer Joseph Barnett of law firm Wolfsdorf Rosenthal wrote an article on recent developments in expediting EB-5 processing that bears some referencing here. In general, Barnett says there are two keys to achieving this: “credible, objective data” and “pulling on the heartstrings of the USCIS adjudicator.”

    It is important to note that even if USCIS has previously approved an expedite request made for a specific EB-5 project, they are not required to approve any new requests for the same project. Once again, approvals are always on a case-by-case basis.

    Expedite request processing times

    Regarding the processing time of expedite requests, USCIS does not have any standard or requirement to follow. Recent case history shared by immigration lawyers suggests that Investor Program Office (IPO) has approved I-526 petitions in as little as 9 days after an expedite request approval. But the usual timelines seem to be in the 60 to 120-day range after filing. An investor should remember that an approval of their expedite request only brings the case to an IPO officer more quickly — it doesn’t speed up the actual adjudication.

    There is yet another element to keep in mind for EB5 processing timing: It’s not always first come, first serve. Often, IPO officers will work together in teams of two or three to adjudicate petitions related to the same investment project. So approvals for the same project can happen around the same time, even despite different filing dates.

    Factors & non-factors for expedite requests

    So what factors can help an expedited request be approved? Recent case studies show that if a project is in an area with much higher unemployment than the Target Employment Area (TEA) standard, it may be more likely to meet the criterion of being in the “national interest.”

    It is worthwhile for investors to understand the potential requirement of “severe financial loss.” Approval may be granted to petitions that demonstrate development timelines are not being met for critical international events or projects associated with female or minority-owned businesses (the advancement of which is mandated by the U.S. Small Business Administration.)

    Uniquely situated or disadvantaged communities that require infrastructure support may also meet the qualification of “national interest,” and help achieve an expedited request approval.

    However, “severe financial loss” does not apply to the typical issues that every EB-5 investor or project may face because of longer processing times. Direct EB-5 investors who need to need to be in the U.S. to manage a business will likewise not receive expedited approval based on just this aspect of their situation. Further, an investor will not receive expedite request approval for challenges resulting from “self-imposed financing arrangements,” like escrow or contractual terms that dictate that the investor’s capital will not be released until I-526 approval.

    Joseph Barnett reminds USA investor visa and EB-5 stakeholders that while a project’s potential qualification for expedited approval may be a strong driver when selecting an EB5 investment, one’s expectations should be tempered. The immigration lawyer states that expedite approval is  “unlikely to be available to the vast majority of applicants, but instead reserved for the rare few who are able to differentiate themselves from the pack for exceptional reasons.”

    Contacting USCIS to make an expedite request

    USCIS advises EB5 investors that they can generally request expedited EB5 processing by phoning their Contact Center at 1-800-767-1833. Those individuals who are deaf, hard of hearing, or who have a speech disability, should call 1-800-7671833. Note that applicants need a receipt number for the USCIS Contact Center to refer an expedite request to the appropriate officer.

    Applicants may be required to provide additional documentation to support a request. And note that an approval or denial of an expedite request is not related to the actual I 526approval or denial — it simply means that petition will be adjudicated sooner than normal.

    See the USCIS page on making an expedited request

    Read immigration lawyer Joseph Barnett’s article on expedited request processing

     

      
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