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Nov 14th, 2020

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USCIS posts 234 months as outer limit of EB-5 I-829 processing; what’s really ‘normal'

The latest I-829 Check Case Processing Times range of 36.5 to 234 months is “good news,” according to EB-5 expert Suzanne Lazicki, as it’s “obviously ridiculous and discredits” the agency’s reporting. Looking at I-829 data between October and December 2018, she observes that 79% of the petitions were adjudicated in 18-30 months. While processing has probably slowed since then, she is optimistic that “future I-829 processing times promise to be shorter.”While 234 months may reflect some rare cases held in limbo for decades, it’s not normalYes, USCIS has posted an outer limit of 234 months for their latest Check Case Processing Times range. No, this should not be considered normal and there could actually be a reason for this seemingly impossible number being published, according to EB-5 expert number cruncher Suzanne Lazicki. She posits that the immigration agency may have just processed a group of I-829 petitions that have been in “limbo since 2002 over compliance with Public Law 107-273.”However, the number is immensely and unfairly misleading, and does not, says the EB-5 business plan writer, reflect what has been normal or expected processing for I-829 petitions. Looking at the USCIS definition of the processing range, we see that only the first number in the range they post represents what could be normal processing, as it is the median processing time of recently processed petitions. The second number is the time it takes to process 93% of the cases. This second number, is used by the agency, says Lazicki, to prevent inquires about currently pending petitions. How to get a real sense of normal processing timesLazicki says it is possible to get a more accurate sense of what I-829 processing looks like for the vast majority of petitions: look at real case adjudication data. When she ventures into the USCIS Electronic Reading Room (which gives access to information identified under the Freedom of Information Act) she sees real case processing dates and can draw some very worthwhile conclusions. The latest published data is for Q1 of fiscal year 2019, and provides the approval or denial date of all I-829 petitions adjudicated from October of 2018 to December 2018. Lazicki sees that the overwhelming majority of the petitions, 79%, in fact, are processed in 18 to 30 months.How real processing numbers compare with the Check Case Processing Times numbersSo when we have real data to see what “normal” I-829 processing looked like for this period, it is interesting to compare it with the UCSCI published Check Case Processing Times report from December 2018. That report posted a range of 30-39 months.“The report was misleading, even if it may have been technically accurate in reflecting the median and 93rd percentile of recent adjudications,” states Lazicki. So the agency is posting real numbers but not giving a real impression of normal. What is normal I-829 processing today?Processing times are reflective of USCIS efficiency. So how today’s I-829 processing numbers compare with the 18-30-month range of a couple years ago depends on how productive the agency is at the moment. While Lazicki estimates that USCIS productivity has probably been lower than it was at the end of calendar year 2018, she has good news: “Future I-829 processing times promise to be shorter, if the productivity improvement evident early this year turns into a continuing trend.”What the 234 months could really be referring toWhile it could simply be a typo (though the longer that number stays published, the less likely this theory must be), the outer range of the most recent I-829 processing time report could actually be rooted in some real cases — if 7% of recently processed petitions were older than 234 months. And Lazicki knows of one situation that may, in fact, have lead to a more than 19-year-long delay in processing.Between 1995 and 1998, some I-526 petitions were approved, though USCIS would later have problems with them. Precedent-setting decisions were then issued that resulted in litigation. To resolve the matter, Congress passed Public Law 107-273 in 2002; this gave the investors in question an opportunity to make their petitions eligible for the removal of conditions on permanent residency. However, P.L. 107-273 required that the immigration service must first implement regulations within 120 days before denying the I-829 petitions of those investors.120 days came and went. Years then passed and the proposed regulations were still not finalized. In 2010, the agency said that 581 I-829 petitions were still awaiting the finalized regulations. In 2019 the proposed regulations were still not finalized.Thus, Lazicki surmises that USCIS only recently processed hundreds of I-829 petitions that have been in limbo for almost two decades. And that’s why we’re seeing this anomaly of 234 months as being an outside number in case processing at the moment: extreme statical outliers that are not representative of recent I-829 petitions.Regardless of whether Lazicki’s obscure but meaningful evidence is the reason for this number, take heart in her advice that the “real normal” is not what the agency would lead EB-5 investors and stakeholders to believe.Read Lazicki’s blog “What is normal I-829 processing?”

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