When foreign nationals commit to making an EB-5 investment in the EB-5 Immigrant Investor Program, it isn’t clear when exactly they will receive their conditional permanent resident status in the United States. An investor and their immediate family members are eligible for conditional U.S. green cards following approval of the investor’s I-526 petition, but processing times can be impacted by a myriad of factors, from a global pandemic temporarily shutting down most of public life to waning finances at United States Citizenship and Immigration Services (USCIS).
2020 has been a difficult year for everyone, and USCIS and EB-5 investors are no exception. The temporary suspension of routine visa services at U.S. consulates and embassies the world over has left thousands of EB5 investment participants in limbo, unable to complete their visa interview and obtain their U.S. conditional permanent resident status. At the same time, the COVID-19 pandemic has benefited the program in certain ways, including by freeing up time for staff at the Immigrant Investor Program Office (IPO) to adjudicate I-526 and I-829 petitions through the forced cessation of other activities.
The beneficial effects of the pandemic on I-526 petition processing is evident with the release of USCIS’s historical national average processing times data up to August 31, 2020. At just 14.1 months, the average I-526 processing time for the first three quarters of FY2020 is the lowest it’s been in five years and certainly lower than FY2019’s figure of 19.8 months.
The EB-5 community has long lamented the IPO’s sluggishness since the appointment of Sarah Kendall as chief. While the number of adjudicated petitions has fallen dramatically (accompanied by, notably, a much lower approvals-to-denials ratio) under Kendall’s watch, this drop is not reflected in the historical average processing times. This could indicate that the IPO is primarily adjudicating newer petitions, casting older applications into seemingly perpetual limbo.
The updated historical national average processing time is also incongruent with USCIS’s posted estimated processing time range, which, as of November 19, 2020, lists the estimated processing time range for I-526 petitions at 30–49.5 months (47–76.5 months for EB-5 investment participants from China). Discrepancies between these two figures is normal, considering that the historical national average processing times reflect processing averages from two months prior. Furthermore, interpreting the estimated processing time range is not as straightforward as one may assume—the lower number in the range represents the number of months by which 50% of applications are estimated to have been processed. Regardless, with a historical national average processing time figure of less than half of the lower figure in the estimated processing time range, the utility of the estimated processing time range may be questioned.
Time will tell whether the processing times remain low, but the trend is certainly a positive movement for those involved with EB5 investments. The lower processing times, combined with various other factors, may make the COVID-19 pandemic the ideal time to initiate the process of obtaining permanent residency in the United States through the EB-5 program.
