The new landscape of EB-5, restricting filings to direct investment only, causes us to wonder what this means for adjudication timelines. We at eb5Marketplace have asked two EB-5 active immigration lawyers, Sam Newbold and Christian Triantaphyllis, what they think about the current state of EB-5 processing times and what they see in the future.
What’s USCIS doing right now?
Triantaphyllis knows that since the June 30th lapse of the Regional Center Program, U.S. Citizenship and Immigration Services (USCIS) has been mostly focused on adjudicating direct I-526 petitions, and clearing out much of the past direct backlog. “I have seen USCIS get through the majority of the direct I-526 petitions that were filed in 2019. In comparison, looking at regional center I-526 petitions, I have many still pending or untouched petitions that were filed in 2019,” Triantaphyllis states. So when will USCIS get to direct petitions filed this year? Triantaphyllis is hopeful that will happen quite soon. ”I don’t know how many direct I-526 petitions were filed in 2020 — I would anticipate it to be a relatively low number considering the overall numbers that were filed in 2020, so I would imagine USCIS has the capability and resources to get through the direct EB-5 petitions filed in 2020 and get to the 2021 filings sooner rather than later.”
Do we have any evidence about direct processing times right now?
Not as of yet. The industry shift to direct investing is just too recent to provide any hard statistics on how long it is taking for non-expedited direct petitions to be processed. Newbold tells us that we’re going to have to wait a little longer for such data. “The earliest that these directs have started to be filed and received by USCIS is likely somewhere in the neighbourhood of August or September, 2021, so those cases have only been pending for a short while yet. I don’t think we’re really going to know what the new processing times are going to be for directs for several months.”
What could direct processing times be?
Even without sufficient data, immigration lawyers are asked to estimate how long a direct petition might take to be processed. Newbold is hopeful direct processing could actually be much quicker than the times we’ve seen prior to the regional center lapsing. He surmises “it's possible processing times won’t last 12 months, generally speaking.” With none of USCIS's attention on regional center petitions — which represented 95% of the petitions filed before June 30th — it's clear there is a lot more manpower to process direct EB-5 petitions. More attention on far fewer petitions could shorten approval times significantly.
How does Regional Center Program lapse impact direct processing?
One thing Newbold states with certainty is this, the longer the Regional Center Program remains unauthorized, the better it will be for direct EB-5 investors. “The longer that the EB-5 Regional Center Program remains unauthorized, it seems logical to think that direct cases would have quicker processing times because they’re the only cases being processed. I would certainly expect processing times to be much more favourable than they have been in the past, as the Regional Center Program remains at bay.”
Is it possible there is no change to processing times?
While Newbold logically assumes USCIS should have more time and attention for direct cases, he offers this conjecture about maximum timelines for direct investment processing: “Worst case scenario is processing times should’t exceed what we’ve seen in the past.” And in the recent past, I-526 processing was taking about two years.
What is the current status and future for EB-5 filings?
Direct investing is the only active EB-5 investment opportunity. The future of the Regional Center Program is up in the air — first, we heard that reauthorization would happen by June 30th, then by October, then December, and now there are rumblings of a spring-time extension. So many investors have acted on what is certain: the program that provides EB-5 visas for those investing directly into a job-creating business is a permanent program. With many attractive direct investments available right now — and at an investment amount of $500,000 — it should attract a lot of petitioners. But that investment amount may not last for long. Triantaphyllis has observed a recent increase in investing. “The 2021 filings have certainly picked up, especially for direct EB-5, since we have the $500,000 investment level available to us.” We are now in, according to Newbold, the “golden era of the direct EB-5 investment.” And we may know soon enough if faster processing is yet another benefit for investors. Sam Newbold has successfully counselled hundreds of EB-5 investors and family members, and is also representing 12-15 Molecular Diagnostics, a company offering direct EB-5 investments. Christian Triantaphyllis is an immigration lawyer with many years experience representing EB- investors and regional centers, and is currently counsel for BreezLyte, another business looking to attract direct EB-5 investors.