The Visa Availability Approach
Announced in January 2020 and enacted on March 31, 2020, the new visa availability processing approach for I-526 petitions has made its debut, with its concrete impacts yet unclear. Even though the new processing approach brings noticeable changes to the EB-5 journey, United States Citizenship and Immigration Services (USCIS) has failed to update its Check Case Processing Times page accordingly.
Since USCIS’s estimated processing times reflect data from two weeks prior, it’s possible USCIS will not update its website until June. It is also possible that USCIS will never update the page.
The good news, however, is that according to the historical processing times, I-526 adjudications are speeding up. In the period of October 2019 to January 2020, the average I-526 processing times were down to just over 12 months—a historical low in the five-year period presented on the website. Additionally, while the processing data during the COVID-19 pandemic have not yet been released, more EB-5 investors are reporting receiving adjudications since the crisis began. With public life shut down, the Immigrant Investor Processing Office (IPO) is cooped up inside and likely has nothing much to do other than adjudicate EB-5 petitions, which is good news for EB-5 investors awaiting I-526 approval.
The Impact of COVID-19
As infection numbers and unemployment rates continue to shoot up, no one in the United States has been left unaffected. With the economy suffering unprecedented damage, the EB-5 program has the resources to help, especially given that it incentivizes investment in high-unemployment areas, termed “targeted employment areas” (TEAs). However, the current setup of the TEA system is insufficient to allow the EB-5 program to properly respond to the economic fallout of COVID-19.
TEA designation is based on unemployment averages from the year prior, which means I-526 petitions in 2020 must use figures from 2019. 2020’s skyrocketing unemployment figures will only come into play in 2021, and the overall figures depend on numerous factors, including how long the crisis lasts, how many businesses permanently shutter, and how quickly the economy rebounds.
However, even if the TEA system used current unemployment data, an additional problem hinders the EB-5 program’s ability to assist in building the economy back up: It is based on relative unemployment. If unemployment rates skyrocket all over the country, the TEA program will not incentivize investment in many areas, even if they have a dire need for economic stimulation. Only the areas hit hardest by COVID-19 job losses will enjoy the benefits of EB-5 TEA designation.
As the TEA system stands now, hard-hit areas like New York may stand to benefit from the EB-5 program, but much of the country will not, even though the entire country is likely to need the foreign investment the EB-5 program brings into the country. While the rumors of sweeping changes to the EB-5 program in response to the COVID-19 pandemic have been repeatedly debunked, more moderate changes to the program, especially to the TEA system, could dramatically improve the program’s position to help foster the U.S. economy and make sure the United States remains strong and proud.
