The EB-5 Immigrant Investor Program is undoubtedly the best way for foreign nationals to relocate to the United States. Since 1990, the EB-5 program has enabled thousands of foreign nationals to gain permanent resident status and enjoy a new life in the United States. In addition, the minimum EB-5 investment requirements were lowered on June 22, 2021. Now, EB-5 investments can be made at only $500,000 for targeted employment area (TEA) projects and $1,000,000 for projects outside TEAs.

Interested foreign nationals may wonder whether the EB-5 program offers any provisions for investors’ family members. The answer is yes—an EB-5 investor’s family members (that is, their spouse and unmarried children under 21) are also entitled to receive U.S. green cards.

Benefits for Families

Families with children that relocate to the United States will gain access to a world-class education system. In fact, university students who hold permanent resident status are entitled to in-state tuition fees and certain scholarships and grants. Moreover, the college acceptance rate for green card holders is much higher than that of international students, and green card holders can work without restrictions before, during, and after their studies. Obtaining U.S. permanent resident status will make the college admissions process smoother and more economical—it will also make it easier to start a successful career in the United States.

There are countless other advantages to relocating to the United States. For instance, families will be able to enjoy the country’s diverse culture, safety, and wide-ranging options for entertainment and recreation. In addition, the United States possesses the world’s largest economy, enjoys relative political stability, and boasts a strong and reliable infrastructure. These factors make it a safe haven for foreign nationals.

The EB-5 Visa Process

Potential EB-5 investors who would like to relocate to the United States with their families should become familiar with the EB-5 visa process before making an investment. The first step is to submit Form I-526, Immigrant Petition by Alien Investor. Form I-526 must prove that the foreign national has made an EB-5 investment in a qualifying business using legally sourced funds.

Then, the EB-5 investor must wait for USCIS to approve their I-526 petition. Once USCIS reviews and approves Form I-526, the investor and their family are allowed to apply for conditional permanent resident status. Since these green cards are conditional, they only last for two years. During this period, the investor and their family are entitled to virtually all the rights enjoyed by permanent residents—they can live, work, and travel anywhere in the United States without restrictions.

After the two-year conditional residence period ends, the EB-5 investor will then have to take action to remove the conditions from their visa. The investor must submit Form I-829 within 90 days after their conditional permanent residence expires. I-829 petitions should provide ample evidence that the EB-5 investment was successful and complied with all USCIS requirements, such as creating or preserving a minimum of 10 jobs and remaining at risk. If USCIS approves Form I-829, then the investor and their family will receive permanent resident status, which does not expire. After five years, they will even be eligible to apply for U.S. citizenship.

Factors That Families Should Consider

Interested foreign nationals may wonder which family member should make the EB-5 investment and file the visa petitions. This will depend on their situation, but generally the petitioner should be a family member who plans on relocating to the United States permanently.

It is also important to keep the EB-5 program’s regulations in mind. As mentioned previously, an investor’s children must be unmarried and under 21 to receive EB-5 visas. Adult or married children are ineligible for these benefits. However, if parents are primarily interested in enabling one of their children to relocate to the United States, they may simply gift the child the necessary funds to make an EB-5 investment. Then, the child could make the EB5 investment themselves and begin the journey toward permanent resident status.

Evidently, foreign nationals and their families have much to gain from participating in the EB5 investment program. The United States’ strong economy, delightful culture, and political safety make it a true safe haven. Interested foreign nationals should act quickly to identify available EB-5 projects.

The COVID-19 pandemic has had a severe impact on bureaucratic processes around the world, and visa petition adjudication by United States Citizenship and Immigration Services (USCIS) has felt the strain. Global travel restrictions, closures of embassies and consulates, and restrictions on in-person interviews have led to a significant backlog of EB5 investment visa petitions.

The situation intensified as USCIS’s revenue from application fees plummeted. Ur Jaddou, who became the new USCIS director in July 2021, has stated that she will prioritize solving USCIS’s financial situation and implement measures to address the backlog of visa applications.

Four Priority Tiers for Visa Petitions

The United States Department of State (DOS) has announced a new prioritization system for visa applications. The system prioritizes family reunion visas over work- or business-related applications. The categories are the following:

• Tier One: Intercountry adoption visas for immediate relatives; certain Special Immigrant Visas; cases where an applicant will no longer be eligible because of age restrictions; and other emergency cases
• Tier Two: Fiancé(e) visas; immediate relative visas; and returning resident visas
• Tier Three: Family preference immigrant visas and SE Special Immigrant Visas for certain U.S. government employees
• Tier Four: All other immigrant visas

The hope is that this structured prioritization will make processing visa petitions more straightforward and efficient. Nevertheless, relative and adoption visa petitions will be processed before applications related to the EB-5 investment program.

The Outlook for EB-5 Visa Petitions

The EB-5 investment industry has faced several disruptions since 2020. Notably, the temporary closure of the EB-5 Regional Center Program suspended this popular investment route. This means that EB-5 investors can make only direct investments.

The news that the EB-5 petition backlog is not being prioritized by the DOS may cause some concern. However, since regional center I-526 petitions are no longer being processed by USCIS, it is possible that more adjudicators will be available to process direct EB-5 investment petitions.

Other developments in the EB-5 industry have been positive. For instance, the repeal of the Modernization Rule means that foreign nationals can once again participate in the EB-5 investment program at only $500,000 for targeted employment area (TEA) projects. Qualifying projects outside of TEAs must now receive minimum investments of $1,000,000.

As USCIS has filed an appeal to revalidate the Modernization Rule, it is uncertain how long the current minimum investment amounts will be valid. Foreign nationals interested in making an EB-5 investment should start the process before the regulations change once more.

For over 30 years, the EB-5 investment program has offered foreign nationals a convenient and secure way to relocate to the United States. Many consider the EB-5 program to be the best visa-by-investment system in the world. Additionally, its beneficial effect on the U.S. economy has secured its continued popularity.

Still, the EB-5 investment industry can be difficult to navigate. Even though the EB-5 program’s basic criteria for investors are straightforward, proving compliance with all of them can be challenging even with the help of an experienced immigration attorney. EB-5 investors must provide evidence that they have created at least 10 jobs, used at-risk capital, and sourced their funds legally.

United States Citizenship and Immigration Services (USCIS), which governs the EB-5 program, requires investors to submit two important forms during the EB-5 process: Form I-526, Immigrant Petition by Alien Investor, and Form I-829, Petition by Investor to Remove Conditions on Permanent Resident Status. In these forms, EB-5 investors must show compliance with the above-mentioned requirements. Unfortunately, USCIS denies many EB-5 visa petitions, usually due to common recurring mistakes made by investors. In this article, we show EB-5 investors how to avoid USCIS denials.

Provide Consistent and Accurate Information

It can be challenging to keep track of the minute details and figures that must be included in Forms I-526 and I-829. For example, I-526 petitions must contain details about the EB-5 investment project’s business plan and approach toward creating jobs. If financial projections, employment estimates, or other information is presented inconsistently, USCIS will likely send a request for evidence (RFE) or deny the I-526 petition outright.

The immigration attorney in charge of compiling and filing an investor’s EB-5 visa petition should take great care to ensure internal consistency. Investors should check their petitions several times before filing them.

Evaluate EB-5 Projects Carefully

USCIS also sets out several requirements for EB-5 businesses. Unfortunately, not all available EB-5 projects comply with USCIS regulations, so potential investors should examine every EB-5 investment opportunity carefully. For example, EB-5 investment capital must be at risk and irrevocably committed to the project; all EB-5 investors must be subject to financial gains or losses. In its Policy Manual, USCIS states, “If the immigrant investor is guaranteed a return, or a rate of return on all or a portion of his or her capital, then the amount of any guaranteed return is not at risk.” Therefore, EB-5 businesses that offer a guaranteed return to their investors should be avoided. The at-risk requirement for EB-5 funds applies to both Form I-526 and Form I-829.

Provide Abundant Source-of-Funds Evidence in Form I-526

One of the most time-consuming aspects of compiling Form I-526 is the source-of-funds documentation. EB-5 investors must prove that their funds are lawful and submit numerous documents tracing the capital to its source. USCIS has high evidentiary standards, so the submitted documentation must be thorough and convincing. For example, EB-5 investors who use capital from a real estate sale do not only have to prove that they sold the property—they must also show how they came to acquire it in the first place.

In addition, the needed evidence will depend on each investor’s source of capital, so there is no universal list of required documents for Form I-526. An immigration attorney’s assistance will be invaluable at this stage.

EB5 investment regulations may seem overwhelming, but the program is still a comparatively easy way to relocate to the United States. Before making an EB-5 investment, interested foreign nationals should carefully evaluate USCIS requirements and consult with immigration counsel.

United States Citizenship and Immigration Services (USCIS) uses its monthly Visa Bulletins to indicate which EB-5 investors are eligible to apply for and receive conditional permanent resident status. EB-5 investors must undergo this two-year conditional residency period before permanently relocating to the United States.

Unfortunately, the EB-5 investment industry has long been plagued by slow processing times for Form I-526, the visa petition that grants investors conditional permanent resident status. USCIS typically takes several years to process I-526 petitions. Moreover, certain countries with high volumes of EB-5 investors have been subject to final action dates that limit when conditional green cards can be granted. Even though India and Vietnam previously experienced backlogs, these had been cleared by the August 2021 Visa Bulletin. Moreover, the final action date for China, the country with the largest EB-5 backlog, made steady progress between the June and September 2021 Visa Bulletins after more than a year of inactivity. Unfortunately, the November 2021 Visa Bulletin shows no progress toward clearing the Chinese EB-5 backlog. It may be that China’s EB-5 backlog is in for another extended period of stagnancy.

Chart A, “Final Action Dates for Employment-Based Preference Cases”

Chart A of the November 2021 Visa Bulletin shows that China is the only country that is still subject to a final action date: November 22, 2015. This date has remained the same since the September 2021 Visa Bulletin.

Due to USCIS’s processing inefficiency, Chinese EB-5 investors who submitted their I-526 petitions after November 22, 2015, cannot receive conditional permanent resident status. In addition, the regional center values are marked as “U” (unauthorized) due to the expiration of regional center EB-5 investment. It is unclear when the regional center program will be revalidated, and USCIS is no longer accepting I-526 petitions associated with regional centers. All pending regional-center I-526 petitions filed before the program’s expiration on June 30, 2021, will not be adjudicated for the time being.

Chart B, “Dates for Filing of Employment-Based Visa Applications”

Chart B of the November 2021 Visa Bulletin likewise shows no progress in China’s date for filing, which dictates when Chinese EB-5 investors can apply for their conditional visas. The Chinese date for filing is still December 15, 2015—it has not progressed in more than 12 months. Unfortunately, Chinese EB-5 investors still have to wait before requesting their conditional green cards, even if their I-526 petitions have been approved.

The November 2021 Visa Bulletin is indicative of the EB-5 investment industry’s dire need for expedited processing times. USCIS needs to allocate more resources toward adjudicating EB-5 visa petitions; foreign nationals who have complied with all EB5 investment regulations deserve to have their petitions approved within a reasonable timeframe. Ur Jaddou, who was appointed as director of USCIS on July 30, 2021, has said that she will work on reducing the EB-5 visa backlogs.

The requirements set out by United States Citizenship and Immigration Services (USCIS) for EB-5 investors are relatively straightforward—investors are required to meet the minimum investment threshold, use at-risk funds, create at least 10 jobs, and prove that their invested capital was sourced lawfully. Thanks to the EB-5 investment program’s accessibility, thousands of foreign nationals have been able to relocate to the United States and enjoy the benefits of permanent resident status.

After an EB-5 investment has been made, the next step is to file Form I-526, Immigrant Petition by Alien Investor. USCIS will evaluate this petition to determine whether an investor has complied with the program’s regulations. Investors whose I-526 petitions have been approved by USCIS are cleared to begin a two-year conditional permanent residence period. However, investors occasionally face an unexpected obstacle after filing Form I-526—USCIS may send them a request for evidence (RFE). This article provides some background on RFEs and explains how EB-5 investors can respond to them successfully.

What are RFEs?

USCIS will send an RFE when the information submitted in an investor’s I-526 petition is incomplete or otherwise lacking—there must be abundant evidence that the investor complied with the many guidelines of the EB-5 program. If there are discrepancies in an investor’s I-526 petition or any information is confusing, USCIS will likely issue an RFE.

RFEs indicate what information needs to be provided or clarified by the investor. USCIS will typically provide clear direction on what requirement has not been complied with, and the missing pieces of evidence will be identified. An RFE may even provide examples showing what kind of documentation or other information is needed to complete the I-526 petition.

It is important to note that an RFE does not constitute a denial of the I-526 petition—USCIS simply needs more information to proceed with the adjudication process.

How to Answer an I-526 Petition RFE

The first step is to carefully examine the RFE—investors must be able to identify exactly why USCIS deemed their I-526 petition as lacking. It is also important to keep in mind the deadline for responding.

Every RFE should begin with a cover letter outlining the newly provided evidence. This cover letter should be organized according to the contents of the RFE, which will help the USCIS adjudicators analyze the new evidence more easily. Then, investors need to compile the missing evidence or clarifications, taking care to present this content in an organized manner.

The most straightforward RFEs simply ask for missing forms or specific documents, and it may be relatively straightforward to provide these materials. However, USCIS might also ask investors for stronger evidence that they will create the needed employment, use at-risk funds, or comply with other EB5 investment requirements. These issues are often related to the EB-5 project’s business plan, so investors will have to provide further information showing that the EB-5 project will indeed be successful. To this end, investors may have to provide evidence such as the employment records of existing workers or details about the project’s escrow agreement.

Investors who respond to RFEs face a potential danger: they must take great care not to make any material changes to their EB-5 projects. A material change is defined as a significant alteration to a project’s EB-5 investment structure, business activity, location, or other important features. If such a change takes place after Form I-526 is filed, USCIS will deny the investor’s petition. While investors should provide all the needed evidence and clarifications when answering RFEs, the new information should essentially agree with that of the original I-526 petition.

Since EB-5 investors must consider a myriad of factors when filing Form I-526 and answering RFEs, an immigration counsel’s guidance will be invaluable. Moreover, EB5AN offers RFE response consulting, helping EB-5 investors continue on their path toward permanent residency in the United States.

Historically, United States Citizenship and Immigration Services (USCIS) has maintained strict guidelines for EB-5 investment funds. One such mandate is that investors are expected to prove that their loans were secured by personal assets.

The groundbreaking case Zhang v. USCIS is reshaping the rules for EB-5 investments. It has taken time, resources, and official court rulings, but USCIS may be finally shifting its stance on unsecured loans. The policy changes unearthed in this case may create more opportunities for EB-5 investors, especially those struggling to meet the minimum EB-5 investment amounts.

Zhang v. USCIS

The history of this case begins in 2013 when Huashan Zhang and Masayuki Hagiwara each invested $500,000 into a new commercial enterprise (NCE). The funds were borrowed from each investor’s own business. The investors planned on meeting the eligibility requirements for participation in the EB-5 program.

Unfortunately for Zhang and Hagiwara, USCIS adopted a new policy in a 2015 stakeholder meeting that focused on the rules surrounding “cash” and “indebtedness” in the approval of EB-5 investment funds. USCIS determined that cash resulting from a loan (garnered through a third party) is actually indebtedness. This indebtedness would then require collateralization through investor-owned assets. In other words, because Zhang and Hagiwara’s investment was from uncollateralized loans rather than from secured assets, their I-526 petitions were denied.

USCIS’s decision to alter their definitions of “cash” and “indebtedness,” was unpopular. Zhang and Hagiwara decided to file a lawsuit against USCIS.

“Cash” vs. “Indebtedness” in Court

The journey of the Zhang v. USCIS case has been a long one. The filing first went to a district court in November 2018, and the court ruled in favor of the plaintiffs. Then, at USCIS’s insistence, the case then went to the U.S. Court of Appeals for the District of Columbia.

In 2020, the Court of Appeals determined that USCIS had wrongfully imposed collateralization demands on loan investments. After examining the standard definitions of “cash” versus “indebtedness,” the court ruling was that USCIS’s interpretation violated the plain meaning of EB-5 regulations. The court explained that “cash is fungible and it passes from buyer to seller, without imposing on the seller any of the buyer’s obligations to his own creditors.”

Loan Proceeds are “Cash,” and Cash is Qualified Capital

In spite of USCIS’s efforts, the appeals court ultimately ruled in favor of the plaintiffs. Essentially, it was determined that loan proceeds are “cash” and qualify as capital. As such, unsecured loans were classified as a legitimate source of funds for EB-5 investments. This was a victory for the plaintiffs and the EB-5 investment program.

The Future of USCIS and Unsecured Loans

The ruling was binding on USCIS, and Zhang’s victory establishes an important precedent for EB-5 investors. USCIS approved Zhang’s I-526 petition on April 14, 2021. Although the exact future of unsecured loans in the EB-5 investment industry is somewhat unclear, the ruling suggests that these types of loans may eventually become eligible for regular use in the EB-5 investment process.

Using Loaned Funds for an EB-5 Investment

Investors who are considering using a loan to fund their EB-5 capital should note that the majority of USCIS guidelines are still in place for all investors. In order to ensure that their investment capital meets all the source-of-funds requirements, investors should work with an experienced EB-5 legal professional before investing in an NCE. Consulting with an EB-5 firm such as EB5AN can save foreign nationals significant time and resources by avoiding issues that lead to petition denials.

The EB-5 program is a popular way for foreign nationals to obtain a U.S. green card. Because of the suspension of regional center investment in June 2021, many potential investors are looking for direct EB-5 investment projects. This investment type is regarded as one of the best options for foreign nationals seeking U.S. residency and remains popular.

As of June 22, 2021, the minimum EB-5 investment amount for targeted employment area (TEA) projects is only $500,000, making the program accessible to many foreign nationals. This amount was lowered because the controversial EB-5 Modernization Rule was deemed invalid by the U.S. District Court for the Northern District of California. As a result, guidelines for EB-5 investments reverted to their pre-Modernization Rule status.

However, investors need to act fast: United States Citizenship and Immigration Services (USCIS) has already filed an appeal to reverse the court’s decision, and the minimum investment threshold might increase soon. Interested foreign nationals are advised to invest at the lower amount of $500,000 and start the EB5 investment process, thus securing their status before any further changes are made.

Why make a direct EB-5 investment? There are three key reasons why direct EB-5 investment is a great option for foreign nationals.

1. Investors are Actively Involved in their EB-5 Projects

Since the suspension of the regional center program in June 2021, direct investment is the only option for foreign nationals looking to make an EB5 investment. While regional center investors often have a more passive role in their projects, direct EB-5 investors can choose to be active. Many direct investors want to be involved in the major decisions and are “hands-on” managers of their business. For investors wanting to retain some control over how their capital is used, direct investment is an ideal choice.

2. The Potential for Higher Returns

Direct EB-5 investment also offers greater potential returns. There are fewer people involved with direct EB-5 projects when compared to regional center projects, and the EB-5 investment capital goes directly into the new commercial enterprise (NCE). When direct EB-5 businesses grow, their investors receive a higher rate of return—this greater earning potential should motivate prospective EB-5 investors.

3. A More Secure Path

By selecting the direct EB5 investment path, investors can take comfort in knowing that their investment route is secure for the long term. The recent suspension of the regional center program created concern for investors. In fact, USCIS halted all I-526 petitions related to regional centers, so regional center investors may eventually try to get their funds back.

Direct EB-5 investors do not face these issues. Since direct EB-5 investment is already embedded within the EB-5 program, this investment route is not subject to periodic review. At present, the fact that no petitions from regional centers are being accepted means that there are more USCIS adjudicators available to handle direct investment petitions. This may result in shorter processing times for direct EB-5 investors.

Participating in the EB-5 Program

Now is the best time to make a direct EB-5 investment; the minimum investment amounts could be raised in the near future. Direct investors will appreciate being involved in the management of their business and enjoy the stability and returns associated with direct EB-5 projects.

EB5AN is here to help interested investors with their EB-5 projects. Our experts can connect prospective investors with the direct investment opportunities that best suit their individual needs.

For several years, South Korean nationals have been among the most loyal members of the EB-5 investment industry. The EB-5 program is open to qualifying investors from all nationalities, and there are no restrictions regarding an investor’s age or profession. Thousands of successful, high-net-worth South Koreans have relocated to the United States lawfully after making an EB5 investment in a qualifying business.

The EB-5 investment industry benefits immeasurably from South Korean capital, which has created many jobs for qualifying U.S. workers, strengthened the economy, and reduced unemployment. In fact, now is the ideal time for South Korean nationals to participate in the EB-5 program and begin their journey toward permanent resident status.

South Korea’s Role in the EB-5 Investment Industry

Even though China, India, and Vietnam have historically been the countries with the most EB-5 applicants, South Korea is not far behind. For example, United States Citizenship and Immigration Services (USCIS) reported that 695 EB-5 visas were issued to South Korean investors in FY2019. This means that South Korea received an impressive 7.3% of all available EB-5 visas. Vietnamese investors were issued 716 visas—only 21 more than South Korean nationals.

Migration agents are active in South Korea and help refer interested individuals to suitable EB-5 investment opportunities. Additionally, the visa petition approval rates for South Korean investors are high.

How South Korean Families Benefit From the EB-5 Program

The EB-5 visa offers families a practical way to relocate to the United States—under the EB-5 program, an investor’s spouse and unmarried children under the age of 21 are also eligible for permanent resident status. Any children will gain access to the United States’ world-class education system. What is more, their chances of being admitted to a U.S. college grow significantly when they become permanent residents.

Potential South Korean EB-5 Investors Should Act Quickly

Since South Korea has an exceptionally high volume of EB-5 investors, the country faces a growing danger: becoming oversubscribed and experiencing a processing backlog. USCIS is known for its notoriously slow visa petition processing times, and countries such as China, India, and Vietnam have experienced long backlogs. As of September 2021, South Korea has not yet reached the point of oversubscription, but this may happen in the coming months or years.

Moreover, the EB-5 industry is still celebrating the June 22, 2021, court ruling that invalidated the controversial Modernization Rule. The repeal of the Modernization Rule means that foreign nationals can invest at only $500,000 if they choose a targeted employment area (TEA) EB-5 project. USCIS has already filed an appeal against this decision, so prospective investors should act quickly to invest at only $500,000. EB5AN offers several trustworthy and profitable EB-5 projects.

Many foreign nationals view the EB-5 Immigrant Investor Program as the most accessible way to relocate to the United States. Thousands of foreign nationals have obtained U.S. permanent resident status through the EB-5 investment program, and U.S. businesses have gained a valuable source of capital. Moreover, the EB-5 investment process is relatively straightforward. United States Citizenship and Immigration Services (USCIS), which oversees the EB-5 program, sets out clear requirements for investors.

However, the EB5 investment industry is plagued with certain problems, the foremost of which is USCIS’s notoriously low processing efficiency. The agency typically takes several years to adjudicate visa petitions such as Form I-526 and Form I-829, even if the adjudication ultimately results in a denial. To complicate matters, several countries with particularly high volumes of EB-5 investors have experienced processing backlogs. Chinese investors, for instance, are subject to a final action date that dictates when they can receive conditional permanent resident status.

Due to USCIS’s adjudication inefficiency, an EB-5 investor may find that the agency is taking an unreasonably long time processing their I-526 or I-829 petition. In this case, they may decide to take action and file a writ of mandamus.

What is a Writ of Mandamus?

In the EB-5 investment industry, a writ of mandamus is a federal lawsuit that orders USCIS to adjudicate an unreasonably delayed visa petition. An EB-5 investor should consider filing a writ of mandamus if USCIS is taking an unreasonably long time with their visa petition. This may also be a viable option for EB-5 investors with dependent children who could marry and thus become ineligible for permanent resident status.

Risks of Filing a Writ of Mandamus

However, filing a writ of mandamus can be risky because such litigation can only force USCIS to adjudicate a visa petition, not to approve it. If a writ of mandamus is filed successfully and USCIS is ordered to adjudicate a visa petition, the agency may issue an outright denial if any information is unclear, misleading, or out of compliance with EB-5 regulations. While USCIS typically sends a request for evidence (RFE) for visa petitions that need improvement, EB-5 investors who file a successful writ of mandamus cannot benefit from this provision.

Given this danger, filing a writ of mandamus should be the last resort to expedite an uncommonly slow adjudication process. Investors should only take this step if they are absolutely certain that all the necessary information is included in their petition and that the information is accurate. Moreover, filing a writ of mandamus can be very expensive, and there is no guarantee of success.

Despite the dangers of resorting to a writ of mandamus, there are legal precedents for successful litigation against USCIS. In the Keller Wurtz v. USCIS and Raju et al v. Cuccinelli lawsuits, the plaintiffs were disgruntled EB-5 investors who had waited approximately two years for their I-526 petitions to be adjudicated. The judges ruled in the investors’ favor, finding that, according to Congress, visa petitions such as Form I-526 should be processed within 180 days. This precedent may encourage other EB-5 investors to initiate mandamus litigation against USCIS.

Regardless of an EB-5 investor’s situation, they should always consult an immigration attorney with EB-5 experience. Competent immigration counsel can help EB-5 investors decide which steps to take if they experience an unreasonably long adjudication period.

The EB-5 investment program is popular among foreign nationals for many reasons. For instance, it offers accessible investment thresholds of $500,000 for targeted employment area (TEA) projects and $1,000,000 for non-TEA projects. Moreover, the EB-5 program sets out reasonable criteria regarding job creation, using at-risk funds, and other matters; many other visa-by-investment programs are far less accessible.

However, the EB-5 investment industry has long been plagued by a major issue—slow visa petition processing times. United States Citizenship and Immigration Services (USCIS), which oversees the EB-5 program and processes EB-5 visa applications, is known for its sluggish adjudication speeds. USCIS’s processing inefficiency is detrimental to the EB-5 investment industry. EB-5 investors must submit two important petitions to USCIS: Form I-526 and Form I-829. Form I-526 grants investors a two-year conditional residency, while Form I-829 is used to achieve permanent resident status.

Processing data from USCIS’s FY2021 show that adjudication times for Form I-829 are not improving. EB-5 investment stakeholders—including project developers, investors, consultants, and immigration attorneys—may be wondering if USCIS will ever increase its processing efficiency. The remainder of FY2021 is unlikely to bring significant improvements.

I-829 Processing Statistics

From October 2020 to June 2021, USCIS processed 1,733 I-829 petitions. This figure is 37% lower than the total of 2,765 I-829 petitions processed during FY2020. Moreover, the denial rate for Form I-829 during FY2021 Q3 (April to June 2021) increased to 24%.

Perhaps the most worrying figure is that there were 11,160 I-829 petitions waiting to be processed as of the end of FY2021 Q3—this figure has grown by 8% compared to the previous quarter. Due to USCIS’s processing inefficiency, thousands of investors, many of whom undoubtedly complied with all EB5 investment regulations, are unable to move forward with the visa process. Discouraging statistics like these harm the EB-5 program’s image and make it less appealing for foreign nationals. Potential investors may be discouraged from filing Form I-829 and paying USCIS thousands of dollars in processing fees only to have to wait for several years until their petitions are adjudicated.

Will I-829 Adjudication Speed Up?

USCIS will have to allocate more resources to I-829 adjudication if the processing times are to improve. Doing so will be critical for the EB-5 investment industry. Fortunately, recent developments indicate that USCIS could take the necessary measures.

Ur Jaddou was confirmed as the new director of USCIS on July 30, 2021; she has pledged to work toward clearing the visa petition backlogs and improving productivity. Hopefully, Jaddou will make these issues a priority. Moreover, the regional center program expired on June 30, 2021. Since USCIS is no longer processing I-526 petitions associated with regional centers, more employees could potentially be used to address the backlog of existing I-829 petitions.