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In March 2020, Sarah Kendal, Chief of the Immigrant Investor Program Office (IPO), shared that the office was in a better position than in FY2019 when it came to processing EB-5 Immigrant Investor Program petitions. Then a global pandemic hit.
However, in stark contrast to most types of global business, the economic shutdowns in the wake of the COVID-19 pandemic actually allowed United States Citizenship and Immigration Services (USCIS) to put a greater focus on processing I-526 petitions. In other words, an increase in estimated processing times on I-526 petitions doesn’t necessarily equate to bad news for you. Once data is released for the last two quarters, EB-5 participants will know for sure whether the prediction of increased productivity proves true.
Sharp Increases in I-526 Petition Processing Times
USCIS recently updated its estimated processing time ranges on I-526 petitions by more than a year (bumped from 29.5–44.5 months in May 2020 to 46–74.5 months in August 2020). Even before the latest surge in both the low- and high-end time ranges on I-526 processing, the previous information release cycle indicated significant increases in the high-end ranges.
Two rounds of processing-time increases in the last few months may leave EB-5 investors seriously doubting Kendal’s promise of increased productivity. But do those investors truly understand what USCIS estimated petition processing time ranges represent?
EB-5 Petition Adjudication Timing in a Nutshell
The most important thing for EB-5 investors to remember about processing times is that the majority of investors do not experience adjudication within the estimated time range.
- Half of all investors receive adjudication on their petitions prior to the first processing time in the listed range.
- Another 43 percent (for a total of 93 percent) of investors’ petitions are adjudicated prior to the second processing time in the listed range.
These statistics leave nearly all EB-5 investors reasonably expecting a decision from USCIS on their petitions far more quickly than what they may think just by looking at a given processing time range. Nonetheless, the question of why the processing times have suddenly shot up remains.
Changes in the Prioritization of I-526 Petitions
The initial investor assumption is that a processing time range increase indicates a processing volume decrease on the part of the IPO. That isn’t necessarily true. The reality is that a large volume of petitions have been left unadjudicated for years on end. These jumps in processing time ranges may actually indicate drastic measures being taken within the IPO to prevent inquiries (and even litigation) on seemingly forgotten petitions.
Reprioritization May Lead to Increased Productivity
Another important consideration? USCIS does not factor the newly implemented visa availability approach into its timing calculations. This could be a major reason for processing time inaccuracies.
Back in April 2020, USCIS implemented a new approach to prioritizing I-526 adjudications. Whereas they used to be adjudicated on a first-in-first-out basis, they are now prioritized by the total number of visas readily available for an EB-5 investor’s country. This means petitions from EB-5 investors in countries without a backlog are likely to be adjudicated more quickly than backlogged ones (as of August 2020, China and Vietnam).
In 2021, when the FY2020 Q3 and Q4 statistics are released, the EB-5 community will see the bigger picture on EB-5 processing volume and whether Kendal come through on her statements.
