For the last several years, EB-5 processing times have increased substantially. And so has investor confusion.
And now with the enactment of the EB-5 Reform and Integrity Act of 2022 (RIA), a new category of processing — priority — has been introduced.
To help get a sense of how long processing of I-526e petitions might take, we spoke with top EB-5 immigration lawyers: Dennis Tristani, Joseph Barnett, Robert Divine, Joel Yanovich, and Sam Newbold. They shared their thoughts and expectations for standard, priority, and expedited processing times.
Standard processing times
Standard EB-5 processing refers to a regular petition, one that does not qualify for priority or expedited processing. Prior to the enactment of the RIA, almost all investments received such standard processing.
Historical statistics for standard processing
In FY 2016 to FY 2022, the median I-526 processing time was just 16.6 months. Since then, due to COVID, political factors, and the processing inefficiency of USCIS, processing times have lengthened significantly.
Predicting standard-processing times
What can we expect in 2022 and beyond? The immigration lawyers we spoke with had a range expectations.
Dennis Tristani was the most optimistic: “My sense is that a conservative estimate of 24-30 months for a standard, non-expedited processing will be a safe bet moving forward given the fact that this was a common processing time range prior to the Regional Center Program lapse.”
Joseph Barnett offers: "We are seeing regional center cases from 2015 to late 2018 get approved right now ... usually with the help of a mandamus.”
NOTE: an EB-5 mandamus lawsuit asks a court to compel the government to immediately process a petition if the delay in processing is found to be unreasonable.
Veteran lawyer and former USCIS Acting Director Robert Divine holds a similar view: “The last we knew, standard (non-expedited) I-526 processing times were four or five years", which falls in line with what USCIS is publishing in their "Check Case Processing Times” page regarding I-526 processing: 52.5 months
Priority processing for rural investments
The new EB-5 legislation is clearly focused on helping rural areas.
In addition to receiving the largest portion of reserved visas, rural investments are the only reserved investments to also gain an I-526 processing advantage. The Reform and Integrity Act of 2022 states that USCIS “shall prioritize the processing and adjudication of petitions for rural areas.”
Because the legislation only became enacted in March of 2022, we're not aware of anyone who has filed their I-526e petition, post RIA, having been approved yet, so we just don't have any priority processing examples.
So we asked immigration lawyers to make educated guesses about how long priority processing might take.
Predicting priority processing times
Could priority processing for rural investments be similar to expedited processing?
Yanovich thinks so. “Yes, I suspect that priority processing will be some form of expedited processing. I have seen other interpretations, but I think the most likely way USCIS will interpret this requirement from Congress is to give some level of expedited processing to these cases.”
Tristani is also hopeful that priority processing will be analogous to expedited processing: “Yes, I could see this being a similar benchmark for processing speed, although it’s anyone’s guess as to what this will be. The new legislation established a processing goal of 180 days for an I-526e petition. While I don’t see all I-526e petitions being adjudicated in this timeframe, I could see ‘priority processing’ being a 180-day adjudication.”
Divine acknowledges that “we just don’t know how USCIS will interpret and implement priority processing", and makes a guess that it could take “about a year.”
Sam Newbold throws out: “Maybe 12 months. But, anything short of standard processing would be considered priority processing.”
A contributing author of this paper, registered securities broker Kurt Reuss, believes that rural priority processing will be a year or less.
“My rationale for this is the fact that rural investments are such a major part of the new regulations — commanding the largest portion of the reserved visas,” Reuss explains. “And the RIA architects Senators Grassley and Leahy are both champions of EB-5 as a tool for rural economic development.”
Reuss believes going beyond a year for rural processing would strip the designation "prioritized" of its power and be a political failure. The dictionary defines the term as, "to be treated as more important than other things".
Could mandamus lawsuits for priority petitions be filed much sooner than with standard petitions?
How long is it before 'priority' processing is considered by the court to be unreasonable. Would a judge have a different definition of what is an unreasonable wait time for a rural petition?
Many immigration lawyers are currently filing mandamus lawsuits on behalf of clients, essentially suing the government on the grounds that they are not adhering to their commitments, for which they are being paid. The argument is that taking more than two years to make a decision on an immigration petition is not what was agreed to with the petitioner and the remedy is that the petition deserves an immediate adjudication, either yes or no.
Immigration lawyer Joseph Barnett shares: “If the intent of Congress is to prioritize those [rural] cases, then that is one of the factors a judge looks at when determining whether the delay is unreasonable.”
Lawyer Dennis Tristani sees it as a definite possibility that rural petitioners will get a different definition of “unreasonable” in a mandamus case. And veteran lawyer Robert Divine offers this, “I could see mandamus on a rural-investment petition after one year.”
Lawyer Sam Newbold has a more cautious take on the issue: “It takes time to understand what is ‘reasonable’ processing and for agency precedent to develop.”
Expedited processing for in the national interest
For EB-5 investments that qualify as being in the U.S. national interest, USCIS provides 'expedited' processing, and adjudication is expected to start as soon as possible.
Some of the immigration lawyers we conferred with have, cited recent processing times of just months for an expedited petition. Robert Divine and Dennis Tristani have both saw expedited processing times of about three to six months before the regional center expiration in 2021.
Joel Yanovich has clients that recently filed in an expedited project but have not yet seen adjudications within six months: “My best guess on processing times for expedited cases is less than 12 months.”
Kurt Reuss recently had a petitioner invest in an expedited 'EB-5 Direct' business, who was recently approved, after 7 months.
Who benefits most from expedited processing
Expedited processing is the fastest I-526e processing available and can benefit investors from non- backlogged country, or investors from backlogged countries (China, India, or Vietnam) who qualify for a reserved visa. These investors may be able to be adjudicated and live in the U.S. in about a year.
It should be noted that investors form backlogged countries who do not qualify for a reserved visa will not benefit from expedited processing alone as they may have to wait seven to 10 years for an available visa after I-526e approval.
Investments in rural locations speed processing and offer everyone an EB-5 visa immediately.
Rural priority processing is an advantage for investors from any country. Petitioners from backlogged countries are gravitating toward rural because of the double benefit of priority processing and a reserved visa.
Can we be hopeful about the future?
Joel Yanovich offers some qualified optimism: “Based on the directives from Congress in the new EB-5 law, there is reason to hope these ridiculously long processing times will start to come down. But I am skeptical we're going to see much improvement for non-expedited cases in the near future.”
USCIS claims to be hiring many more people to process EB-5 petitions, but they also need staff to monitor the program with more scrutiny than ever before. Possibly, as the effects of the pandemic recede, we will see USCIS processing efficiency improve — as evidenced by the recent upward trend of processed of I-526 petitions.
Processing times are often one of the top considerations of EB-5 petitioners. For many of them, an investment in a rural or in-the-national-interest may deserve a good look.
If you’re interested in discussing EB-5 investment options that are expected to qualify for faster I-526e processing, book a call with a registered securities broker from eb5Marketplace.
