USCIS just killed EB-5 expedited processing, naturally

March 20th, 2019 - cbehring

USCIS I-526 Processing Times Will Likely Drop to 6 Months.

Recent analysis of USCIS processing data revealed that I-526 adjudication will accelerate significantly. Our best estimate is that an I-526 petition filed in March 2019 will need approximately 6 months for adjudication. Our analysis can be viewed in our recently published article below:

EB-5 I-526 Processing Times Rapidly Accelerating: 6 Month Estimate for Todays Filings

USCIS increased its annual adjudication volume by 23% to a total of 15,122 petitions while new I-526 fillings dropped 47.2% to 6,424. This combination of skyrocketing adjudication and plummeting amounts of new filings results in accelerated processing times.

The Value of EB-5 Expedited Processing

Expedited processing provides the most value when it is a substantially faster alternative to the normal adjudication process. If normal adjudication takes 2 years, then it makes sense to consider an EB-5 project’s expedited processing status as a key decision criterion for your EB-5 investment. However, when the difference between normal I-526 processing time and expedited I-526 processing time is negligible, EB-5 expedited processing should not be the deciding factor. This is especially true for individuals who face the threat of long processing times due to retrogression, especially those from India and Vietnam.

The Drawbacks of EB-5 Expedited Processing

Based on the number of I-526 filings from India and Vietnam that are awaiting adjudication, there is likely already a visa backlog (which is a nice way of saying it is “imminent”). As of March 2019, the USCIS visa bulletin for the EB-5 category is current for both India and Vietnam; however, Charles Oppenheim, the head of the Department of Visa Control, estimated that as of October 2018, it will take Indian nationals 5.7 years and Vietnamese nationals 7.2 years on average from the time of their I-526 petition filing to receive a conditional green card because of retrogression. Charles Oppenheim estimated an official cut-off date would be announced for India by July 2019 but filings have accelerated since then so his base trend line may understate that timing already.

While expedited I-526 processing would reduce I-526 processing time, it would not decrease the time an individual must wait for their petition priority date to become current in order to apply for adjustment of status or consular processing. Petition priority date is based on the date USCIS receives the I-526 petition, not when that petition is approved, meaning there is no net benefit from speeding up I-526 processing.

 

Expedited Processing & EB-5 Retrogression

Retrogression occurs when more than 697 visas are issued to nationals of any one country in a given fiscal year. As of October 2018, India had 1,633 total I-526 petitions pending adjudication. During the 2017 fiscal year, India had an 87% approval rate with an average of 2.67 visas issued per approved I-526 petition. From this we can derive that the estimated number of visas to be claimed by I-526 petitions currently pending is 3,792, and because only 697 visas may be issued per country per fiscal year, given our assumptions we can estimate that it will take 5.45 years to issue all visas expected to be claimed by I-526 petitions pending as of October 2018. Thus it is too late for Individuals from India or Vietnam to benefit from expediting their I-526 petition processing times.

Given the narrowing margin between expedited and normal I-526 processing times, it may be unwise to choose an EB-5 investment project solely because of its expedited processing status. Investors should conduct a thorough due diligence on any EB-5 investment offering they are seriously considering, as the outcome of that decision could potentially result in the loss of the entire investment of $500,000 and any immigration benefits if the project were to fail.

While there is nothing inherently wrong with projects that have expedited processing status, projects that primarily advertise their speed of investor approvals should warrant further due diligence and research. Typically, expedited processing status is given to EB-5 projects that are in geographic regions with significantly higher rates of enduring unemployment than required under current TEA definitions and have been found by USCIS to be “in the national interest” (wolsdorf cite – https://wolfsdorf.com/analyzing-the-recent-trend-of-eb-5-expedited-processing/), meaning the expedited processing status of a project may signal that the project has a higher degree of relative risk. If an EB-5 project received its expedited processing status because it is located in an extremely impoverished location with chronically high unemployment and distressed economic growth prospects, the investment warrants a significant return on investment to justify the relative risk. EB-5 investors should be weary of investment opportunities that promote expedited processing speed as its sole competitive advantage. There are simply too many EB-5 investment opportunities which do not require a compromise in project quality for processing speed. Prospective EB-5 investors need not “sacrifice an arm to save a leg.” With the competitive landscape as it stands today, many projects are capable of delivering immigration benefits while limiting the investor’s risk.

 

Premium Processing Versus EB-5 Expedited Processing: What’s the Difference?

Prospective EB-5 investors often erroneously conflate “premium processing” and “expedited process”.  Under a premium processing service, USCIS guarantees 15 calendar day processing for certain employment-based petitions and applications.  Premium Processing is NOT available for the EB-5 category.  When a petitioner files an expedited processing request, the petitioner merely requests that USCIS adjudicates an immigration petition more quickly, and unlike Premium Processing, there is no requirement or standard for how quickly USCIS must act, either on the request itself or after granting expedited handling.

Additionally, USCIS is not required to approve an expedite request for an investor, even if USCIS had previously approved the expedite request made by either the regional center affiliated with that investor, or another immigrant investor in the same EB-5 project.  Although anecdotes related to expedited processing for EB-5 cases appear to indicate that IPO has approved I-526 petitions in as few as 9 days after an expedite request is approved, or more typically within 60 to  (120 days after filing, caution is advised:  approvals of expedite requests merely get the case in front of IPO officer quicker; it will not speed up the time of the actual adjudication.  Additionally, USCIS often adjudicates I-526 petitions associated with the same EB-5 project in bundles, despite differences in filing dates.  Regional centers and immigration attorneys should be conservative in making any representations or guarantees regarding the timing, applicability, and likely impact of an expedite request.

 

If you have questions about EB-5 expedited processing, or EB-5 projects in general, contact us through our live chat or make an appointment to speak to our expert team live.

 


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