EB-5 expert Suzanne Lazicki has investigated the “disconnect” between the USCIS processing times report and the reality of much shorter average processing times. She states that the reported times “in fact define abnormal and delayed processing.” She claims the agency uses their reported times to create false expectations about normal processing to deter inquires.
EB-5 business plan writer Suzanne Lazicki knows the angst of investors and other industry stakeholders when they read the USCIS reported processing times. To help “demystify” the report — and give hope to potential petitioners — she addresses some fundamental aspects of the USCIS published processing ranges.
USCIS has maintained that until recently, their approach was to “generally process cases in the order we receive them.” Such an approach has been named “first in, first out” (FIFO). Is that actually what the agency had been doing? Lazicki says not really. She claims that “USCIS processing departs significantly from FIFO order.” For evidence, she points to those forms that have a published processing range of years.
With the agency’s publicly announced change to a “visa availability” approach as of March 31, 2020, that would mean country-specific processing times; as such, USCIS promised a revision of processing times for petitioners to refer to. As of the middle of June 2020 no such revisions have been made to the processing times report. Lazicki says that visa availability should mean that some petitioners can expect “much shorter processing times than others.” It will be interesting to see what such “visa availability” numbers look like when finally published.
This range given in the USCIS reports does not reflect average or “normal” processing times. Lazicki calls the first and second number in the range “two signposts on the road to delayed processing.”
Specifically, the first number is not the low end of expected processing times but the time it takes to process 50% of applications. In statistical terms, this number is the median. The second number is the time it takes to process 93% of petitions. Lazicki comments that the second number is “an extreme outlier by definition.” Thus, investors and other EB-5 stakeholders looking at the range of processing times that USCIS presents are really looking at what are longer-than-average processing times.
Once again, what someone would intuitively gather from this date is that, yes, a petition filed at this date or before should be considered delayed. But Lazicki tells us that this is not the boundary for “normal processing.” This date is simply the higher number of a processing times range turned into an actual calendar day.
By USCIS standards, if a petition is outside the time it takes to process 93% of those received, then it officially meets the criteria for case inquiry. Lazicki doesn’t accept this and compares it to actual processing data from USCIS Immigration and Citizenship Data report.
If USCIS were actually following a “first in, first out” approach, a petition filed before the “receipt date for case inquiry” would have been processed long ago. As an example, using the processing time report issued in December 2019, the date for case inquiry would be September 2015. An I-526 petition filed in September 2015 and not processed by October 2019 would be out of order by over 24,000 petitions. Hardly first-in, first out, and proof that the upper range of USCIS published processing times should not be interpreted as “normal.”
Lazicki asks this very simple question: “Why should we accept the USCIS position that a petitioner doesn’t have a right to inquire unless and until he or she is an extreme outlier?”
While the fact that the USCIS “Check case processing times” report doesn’t reflect “normal” processing is unsettling, there is good news: The actual petition processing times have been far shorter than what we are led to believe.
Lazicki uses data of actually processed petitions from October to December 2018 to illustrate this point. While the USCIS processing times report indicated a range of 20.6 to 26.5 months for an I-526 petition, real data shows that the majority of I-526 applications processed during that quarter were processed in just 10-15 months.
More transparency from USCIS would be welcomed by both petitioners and professionals in the EB-5 world, but we can take comfort in knowing that the agency’s projections don’t align with processing reality.
Why would the agency not share “real” numbers more openly? Lazicki surmises this: “USCIS uses the processing times report to create expectations about “normal processing,” and to shut down inquiries.” Far from ideal, but knowing the truth behind the reports takes much of the pain away.
If you are a petitioner, or working with one, who wants the “real numbers” of country-specific processing times, Lazicki can provide that service.
Read Lazicki’s blog “Interpreting Processing Time Reports”
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