While the EB-5 Immigrant Investor Program is generally the quickest and easiest pathway for a foreign national to gain U.S. permanent resident status, that doesn’t mean the program isn’t complex. Each EB-5 project and each EB-5 investment involves a multitude of factors that an investor must navigate to ultimately emerge victorious with U.S. green cards for themselves, their spouse, and their unmarried children below the age of 21. Questions abound, and on November 10, 2020, investors may finally receive the answers to their pressing EB-5 inquiries.

Starting November 10, Invest in the USA (IIUSA), an EB-5 trade association, is holding a two-week virtual conference on major EB-5 topics, including request for evidence (RFE) and denial trends, redeployment, and challenges caused by the COVID-19 crisis. In a typical year, such a forum would be hosted at an in-person venue, but due to the health regulations surrounding the COVID-19 pandemic, the trade association has opted to host 2020’s forum online. Featuring guest of honor speakers Sarah Kendall (chief of the Immigrant Investor Processing Office, or IPO) and Charles Oppenheim (chief of the Visa Control and Reporting Division at the U.S. Department of State), the virtual forum, insists IIUSA, promises to be just as engaging and informative as an in-person event.

The forum spreads five days of EB-5-related presentations and content across two weeks to better fit participants’ busy schedules. Participants need not be IIUSA members to join, but tickets for non-members cost around $200, while tickets for IIUSA members cost $150. One ticket provides access to all panels, so participants may freely choose when to tune in.

IIUSA members have also had the opportunity to send in questions for Sarah Kendall to answer during the forum. The questions touch on a number of EB-5 and IPO topics, such as the follow:

• Why are there incongruencies between the estimated processing time ranges and the historical national average processing times?
• What happens to investors with active EB5 investments who followed the former redeployment guidelines before they were modified in July 2020?
• Why does every EB-5 investor in a project have to submit project documentation even when there have been no changes to the project?
• Does United States Citizenship and Immigration Services (USCIS) anticipate furloughing employees due to budget constraints in FY2021?
• How will the IPO ensure states and regions with low populations, such as Maine, South Dakota, and Alaska, can continue to enjoy EB-5 regional center coverage in the face of rampant terminations related to activity level?

Interested investors may purchase a ticket and tune in to the virtual forum starting November 10 for a wealth of information on the EB-5 program and the direction of its next steps into a COVID-19-plagued world.

Foreign nationals making EB-5 investments to obtain U.S. green cards for themselves, their spouse, and their unmarried children below the age of 21 have enough to worry about between the long wait times for I-526 petition adjudication, the rampant EB-5 regional center terminations in 2019 and 2020, and the financial instability of United States Citizenship and Immigration Services (USCIS). So, unclear instructions for adjudicators that leave room for broad interpretations that could further delay I-526 approval, posing an additional hurdle for EB-5 investors to overcome, is hardly welcomed by the EB-5 world.

In May 2019, USCIS released new training materials for I-526 petition adjudicators. Believing that EB-5 stakeholders, such as those with an active EB5 investment or those operating an EB-5 regional center, should be privy to such information, Invest in the USA (IIUSA), an EB-5 industry trade association, filed a lawsuit against USCIS to publish the documents. Ultimately, USCIS released the documents only to IIUSA, who elected to offer them only to their own members as a member benefit.

The documents provide insights into the EB-5 adjudication process and can shed light on the decisions adjudicators make. In some cases, however, the adjudication instructions are not cut and dry, which can lead to confusion and inconsistent actions taken by the Immigrant Investor Program Office (IPO).

Confusion Around the Source-of-Funds Requirement

In 8 CFR 204.6 (g)(1) of the May 2019 EB-5 adjudicator training material, one can find the following paragraph:

“The establishment of a new commercial enterprise may be used as the basis of a petition for classification as an alien entrepreneur even though there are several owners of the enterprise, including persons who are not seeking classification under section 203 (b) (5) of the Act and non-natural persons, both foreign and domestic, provided that the source(s) of all capital invested is identified and all invested capital has been derived by lawful means.”

The wording of the clause is unclear: what does “all capital invested” mean? Commonly, it’s understood to mean all EB-5 capital invested by the applicant investor, and indeed, this is how most investors carry out their EB5 investment process. Nevertheless, some adjudicators interpret this cause as requiring all capital invested in the EB-5 project, including that of other EB-5 investors as well as non-EB-5 investors, to be documentarily derived from lawful sources.

Common sense dictates that any given EB-5 investor should not be responsible for the EB-5 investment capital of another EB-5 investor in the same project. Each investor is required to document the lawful source of funds for their own EB-5 capital, so USCIS can still uncover illegitimately acquired capital even if each investor does not document the sources of all capital invested in the project. No EB-5 investor should be penalized for the wrongdoings of separate, unrelated investors who happen to be involved in the same project. Similarly, the source of funds of non-EB-5 capital is outside of an individual EB-5 investor’s purview.

Nonetheless, this has not stopped some EB-5 investors from receiving requests for evidence (RFEs) based on broad interpretations of the above paragraph. In December 2019, one EB-5 investor received an RFE requesting government ID or business registration documentation for each other NCE owner, another investor was sent an RFE asking for ID and filed income tax returns for each other NCE owner, and another investor yet was the recipient of an RFE seeking ID and a comprehensive description of the business activities and bank statements of each other NCE owner.

EB-5 investors are not officially required to submit documentation and source-of-funds evidence pertaining to the EB5 investments of other NCE owners, but a broad interpretation of this paragraph by an adjudicator could mean significant stress and processing delays for investors. This unclear instruction opens the door to inconsistency and unfairness in the EB-5 process, leaving each EB-5 investor’s fate up to the interpretation of the particular USCIS adjudicator their petition lands with. With more attention called to this unfair practice, USCIS may clarify their instructions, but until then, EB-5 investors beware.

Foreign nationals who participate in the EB-5 Immigrant Investor Program have two pathways to make their EB-5 investment: directly in a qualifying EB-5 project or indirectly through an approved EB-5 regional center. The EB5 investment pathway doesn’t change the outcome for successful investments: U.S. permanent resident status for the investor and their immediate family members.

However, it does influence how the investment plays out. Those who invest directly are generally required to take on heavier managerial workloads at the new commercial enterprise (NCE), but in return, these investors can exercise more control over their investments. Conversely, those who make an EB-5 investment through a regional center approved by United States Citizenship and Immigration Services (USCIS) enjoy a smaller managerial obligation at the NCE and loosened job-creation requirements that facilitate the attainment of a U.S. green card.

These benefits make EB-5 regional center investment by far the preferred EB5 investment method of program participants. But it is important to bear in mind a few caveats. For example, the EB-5 Regional Center Program is not a permanent USCIS program—it’s only temporary and is continually extended by the government, leaving room open for potential termination in the future. Furthermore, the approved status of individual regional centers is not set in stone, either. USCIS routinely terminates previously approved regional centers, and in fact, it’s terminated a record number of regional centers in 2019 and 2020.

Regional Center Terminations in Numbers

The total number of approved EB-5 regional centers has fallen considerably since 2018, when the program boasted around 800 approved regional centers across the United States. The problems for regional center owners began in November 2019, when the Modernization Rule kicked in and changed the rules for targeted employment area (TEA) designation. The regulation also nearly doubled the minimum required investment amount to $1.8 million ($900,000 for projects in TEAs), resulting in diminished investor interest. With these two changes together, the rule spelled disaster for EB-5 regional centers, and the terminations began rolling in.

In March 2020, there were a total of 772 approved regional centers nationwide. March 2020 is also when the COVID-19 pandemic struck, crippling the economy, destroying jobs and livelihoods, and temporarily pausing routine visa processes at U.S. embassies and consulates. As the pandemic raged on, another 44 regional centers met their demise, bringing the total to 728.

By August 2020, the world had begun to reopen and U.S. embassies and consulates had introduced a phased resumption of visa processes, even though the COVID-19 pandemic continued to ravage various countries. The total number of approved EB-5 regional centers had dropped by 36, leaving only 692 approved regional centers.

Now, in October 2020, there remain only 678 approved EB-5 regional centers, down 14 from August. Though the pace of termination is slowing, there is no indication of the trend reversing anytime soon, and the number of approved regional centers is expected to continue its descension as 2020 comes to a close.

Careful Due Diligence Is Imperative

With more than 100 regional center terminations since 2018, countless EB-5 investors are facing severe complications in their EB-5 investment journey. The rapid pace of regional center terminations highlights the necessity for EB-5 investors to conduct meticulous due diligence on prospective regional centers.

When considering whether to make an EB5 investment through a particular regional center, prospective investors should consider a number of factors. Examining the track record of the regional center is imperative—what is the success ratio of previous investors? Is this project similar to previous projects the regional center has worked with? How many I-526 and I-829 petitions for investors working with the regional center in the past have been approved?

It’s also important to consider the details of the specific project and project developer. Has the regional center worked with this project developer before? What is the project developer’s track record? EB-5 investors should always consult an EB-5 immigration attorney to determine whether the project and regional center work for them and their EB-5 investment goals.

The United States boasts the largest economy in the world and is heralded as a beacon of freedom and liberty—so it’s no wonder foreign nationals from around the world dream of a new life in the United States. Unfortunately, for most, it’s but a pipe dream—immigration is difficult. Foreign investors with the necessary means, however, are in luck: an investment through the EB-5 Immigrant Investor Program can grant an investor and their immediate family members U.S. permanent resident status.

Join the Leading Global Economy

The United States’ stronghold on the global economy is no secret: the nation accounts for more than 24% of the global GDP, first by a large margin, with runner-up China claiming only around 16%. The 2019 Global Competitiveness Report also ranked the United States in second place after taking into consideration a number of factors, including institutions, infrastructure, labor market, business dynamism, innovation capacity, and more. Only Singapore outpaced the United States, which placed first in the 2018 rankings.

Major metropolises such as New York City and Los Angeles are hubs for business innovation, with talented professionals and entrepreneurs setting their sights on such global hotspots and establishing their successful companies in these jurisdictions. This makes such cities magnets for global talent and inspires even more innovation, further boosting the economic power of these areas.

Thanks to the EB-5 program, foreign investors from around the world can take advantage of the economic prowess of the United States. While other major developed countries, such as the UK, Canada, and Australia, also offer visa investment programs, they pale in comparison to the EB-5 program, which dramatically outranks them in terms of popularity. For an EB-5 investment of $1.8 million, or $900,000 if the project is located in a targeted employment area (TEA), foreign nationals can obtain a U.S. green card and forge a new life in the United States of America.

Enjoy a Top-Notch Legal System That Protects Intellectual Property Rights

In the United States, intellectual property rights are protected by strict laws, which fosters an innovative culture and results in a high proportion of inventors and entrepreneurs. Knowing that in the United States, their intellectual property will be stringently protected, the best and brightest of countries around the world flock to the United States to put their creative ideas into action. In fact, in 2015, a total of 52% of patents issued in the United States were granted to inventors born in other countries.

If you’re a foreign investor looking to launch an innovative new business, the legal protections the United States offers are invaluable. Copyrights, trademarks, and patents can safeguard your intellectual property and technology so you can ensure that you’re the beneficiary of your own creativity. To legally bind your employees to the protection of your intellectual property, you can issue non-disclosure agreements and licensing contracts.

Launching a business in the United States without resident status could be tricky, but with the EB-5 program, you can invest in permanent residency for yourself and your family, paving the way to set up your new business in New York, California, Florida, or anywhere else in the United States. It’s an investment not only in the United States but also in yourself, your family, your business, and your future.

Provide Your Children with a Cutting-Edge Education

The United States is by far the most popular destination for international students, and it’s no surprise why—the majority of the top universities are in the United States. An education at a leading U.S. institute of higher education can open all sorts of doors for young scholars with high aspirations, and a U.S. green card makes these opportunities all the more attainable thanks to benefits such as an easier admissions process and the potential for in-state tuition savings.

From Harvard University, to Massachusetts Institute of Technology, to Stanford University, to the University of California, Berkeley, the educational opportunities in the United States are truly high-quality, and any foreign national who wishes to offer their children a brighter future should be interested in U.S. universities like these. Educational opportunities are one of the driving forces behind EB5 investments—in fact, it’s common for parents to donate EB-5 investment capital to their children to make their own EB5 investment. This is a perfect solution when the parents don’t want to abandon their established life in their home country but wish to build a brighter future for their child.

The reasons to invest in the United States through the EB-5 Immigrant Investor Program are numerous, but in the end, it comes down to investing in a better future for yourself and your family. From lucrative business opportunities, to state-of-the-art educational institutes, to unparalleled freedom and security, the United States promises a better life for foreign investors around the world.

Foreign nationals who make an EB-5 investment in a qualifying EB-5 project must satisfy numerous requirements to be eligible for U.S. permanent residency, including providing evidence of the lawful sources of their investment capital and ensuring at least 10 new, full-time jobs for U.S. workers are created through their investment. One additional requirement that EB-5 investors must fulfill is proving on their I-526 petition that they will engage to some extent in the management of the new commercial enterprise (NCE).

To what degree must an EB-5 investor engage in the management of the NCE that they invest in? That depends on the EB5 investment pathway the investor has chosen. If an investor invests directly in an EB-5 project, they are typically required to take on a larger role, involving themselves in the daily managerial activities of the NCE. The benefit of this route is that it allows the investor to retain more control over their EB5 investment, making it the optimal pathway for EB-5 investors with significant managerial experience and who place high value on the financial returns on their EB-5 investment.

NCE Engagement in Regional Center Investment

Overwhelmingly, the EB-5 regional center investment route is the more popular way for foreign investors to participate in the EB-5 Immigrant Investor Program. The reasons investors prefer regional center investment are many—from easier job creation requirements to a higher likelihood of finding an EB-5 project in a targeted unemployment area (TEA), regional center investment offers numerous advantages.

One of the most popular incentives of the regional center route is the more passive managerial role investors may take on. Generally, if an investor works with a regional center to pursue an EB-5 visa, they need only join the NCE as a limited partner to satisfy the engagement requirement. As a limited partner, the EB-5 investor is involved in policy formulation and may vote on important business issues, but they do not have to sacrifice significant amounts of time to engagement at the NCE. In fact, an investor may choose to live in an entirely different state from their chosen EB-5 project—it’s possible to invest in an EB-5 project in Florida but live in Hawaii.

Each EB-5 project has its own project documents that lay out the responsibilities and rights granted to EB-5 investors. Investors, whether they’re making an EB-5 investment through a regional center or not, should work with an experienced EB-5 immigration lawyer to verify that the arrangement stipulated in the EB-5 project’s offering documents or agreements meet the EB-5 program requirements for investor engagement.

Whatever an EB-5 investor’s role is in the NCE, they must provide evidence of their involvement in the NCE on their I-526 petition. The I-526 petition is the first form an EB-5 investor files with United States Citizenship and Immigration Services (USCIS), marking their official embarkment toward an EB-5 visa. If USCIS deems the investor to satisfy all the EB-5 requirements, the I-526 petition will be approved, and the investor and their immediate family members may apply for U.S. conditional permanent resident status.

In September 2020, documentation regarding a May 2019 I-526 “reset training” held by the Investor Program Office for USCIS adjudicators was partially released. The I-526 petition is the form every foreign investor must submit to show they have invested the required capital in an eligible EB5 investment project, either directly or indirectly, through an EB-5 regional center. Documentation must also support that the enterprise will ultimately create the minimum number of full-time jobs required by the EB-5 investment program.

The long-awaited release of this training content comes on the heels of what was initially a Freedom of Information Act request and later a lawsuit due to the agency’s refusal of the request. While the first batch of training materials only amounts to a quarter of the training materials adjudicators were required to cover, 500 pages is certainly a start.

A key sticking point is that the judgment for that FOIA lawsuit only required the documents to be released to the party that filed suit (Invest in the USA, or IIUSA). IIUSA is an EB-5 industry trade association focused on benefiting U.S. workers and their communities (and thus the U.S. economy). Although they are a not-for-profit organization, IIUSA has unfortunately elected to limit access to the reset training materials solely to its members, meaning they are only accessible via the IIUSA Member Portal.

So, what do we know about the materials that have been released so far, and why are they important to EB-5 immigrant investors?

What Important Updates Have Been Released So Far

The first 500 pages of training materials covers quite a bit of ground, beginning with a series of I-526 and I-924 exercises designed to allow adjudicators to practice identifying scenarios in which they should deny deference to previously approved petitions and how to properly request additional evidence for questions surrounding sources and paths of funding. Sections of particular interest for foreign nationals executing an EB-5 investment include new content surrounding the following subject areas:

• At-risk capital
• Economic impact analysis
• Escrow arrangements
• Material changes
• Minor investors
• Non-EB-5 investors
• Path of funds
• TEA analysis

Why These Materials Are So Important for EB-5 Program Participants

Foreign investors spend years following immigration processes and requirements to enjoy a life in the United States. Training materials like these can provide valuable information for both program participants and the experienced legal teams with which they partner on an EB5 investment. These texts offer guidance, interpretation, and sample scenarios that are not provided anywhere else. Frankly, in the name of transparency, these U.S. government materials are exactly the type of information that should be available to the public at large – or at least to the foreign investors and other immigrants who are affected by any changes in the adjudication process.

While most content in these kinds of updates remains the same, nuances in the way USCIS adjudicators are trained to interpret existing policies and the precedents laid out in the presentations they are given can make a huge difference in the way final decisions on EB-5 investment petitions are reached. Not only do these training materials provide basic outlines of information, but interpreters may also glean additional insights from notable angles, emphasis, and even omissions of previously provided information.

When updates are made, those who prepare documentation for adjudicators’ review should be able to access the standards and perspectives adjudicators are asked to use for the documents. It saves time, energy, and resources not only for the immigrants submitting petitions for their EB5 investment but also for the adjudicators required to analyze them.

October 2020’s Visa Bulletin brings dismal news to EB-5 investors from China and Vietnam. Investors from the two backlogged countries must face an even longer wait for adjudication on their I-526 petitions, as the final action dates have not budged from the September 2020 Visa Bulletin. This could change dramatically in November 2020: October marks the beginning of FY2021, a year that will see far more EB-5 visas distributed than any year in the EB-5 program’s history since establishment in 1990. Each year, any unused family-based visas roll over to the EB visa category, and since the COVID-19 pandemic effectively halted immigration, a surge of unused family-based visas have been allocated to the EB-5 program in FY2021, putting the total at more than 18,500—nearly double the average annual number.

The Visa Bulletin for October 2020 is also unusual for an additional reason: when it was drafted, the EB-5 Regional Center Program had yet to be reauthorized. The Regional Center Program accounts for the vast majority of those with EB-5 investments, given that regional centers offer numerous advantages, including relaxed job-creation requirements. However, despite its popularity, it is not a permanent United States Citizenship and Immigration Services (USCIS) program, meaning it’s subject to expiration and reauthorization every so often. The program had been set to expire on September 30, 2020, but was reauthorized at the last minute.

Nonetheless, since the future of the EB-5 Regional Center Program was unknown at the time of publication of the October 2020 Visa Bulletin, all columns in the EB-5 Regional Center category in Charts A and B contain “U,” standing for “unauthorized.” Since the program was indeed reauthorized, investors can assume the final action dates and dates for filing for regional center applicants are the same as those for those with direct EB5 investments.

Final Action Dates

India remains current, having finally achieved the status in July 2020. The situation for Chinese and Vietnamese EB-5 applicants is less sunny: the final action dates for both countries have not moved since September 2020. For EB-5 applicants from China, the final action date is August 15, 2015. For those from Vietnam, it is August 1, 2017. EB-5 investors stuck in the queue will have to wait for November 2020’s Visa Bulletin to see whether the huge increase in available EB-5 visas will help them advance in their EB-5 journeys.

Dates for Filing

For Chinese EB-5 investors waiting to file their application for a U.S. green card, the wait continues. The Chinese date for filing remains December 15, 2015, where it has rested for the better part of a year. However, since the massive uptick in EB-5 visas in FY2021 offers an opportunity for USCIS to reduce the Chinese backlog, those stuck waiting to file may finally see progress in the coming months.

Every year, thousands of foreign nationals from around the world pour their dreams—and $1.8 million, or $900,000 if their selected project is in a targeted employment area (TEA)—into the EB-5 Immigrant Investor Program. Since 1990, the program has allowed countless foreign investors to obtain U.S. permanent resident status for themselves, their spouse, and their unmarried children younger than 21, as long as they invest enough money in a qualifying EB-5 project and meet various program requirements, including the creation of at least 10 full-time jobs for U.S. workers.

Program participants can choose to make their EB-5 investment directly in a project or indirectly via an EB-5 regional center. While both pathways, if successful, lead to the same outcome—a U.S. green card—the requirements differ slightly, and both pathways offer different advantages. Those with substantial managerial expertise may prefer to make an EB5 investment directly in a project because it allows them to participate directly in the day-to-day management of the new commercial enterprise (NCE) and exercise more control over their capital.

EB-5 regional center investment is, however, overwhelmingly the more popular option. Not only are regional center EB-5 projects more likely to be in TEAs, qualifying the investor for the lower investment amount of $900,000, but they also generally eliminate the need to be heavily involved in the NCE’s management by simply signing the investor on as a limited partner. Another major benefit of EB-5 regional center investment is softer requirements for job creation—indirect and induced jobs can be counted toward the 10-job requirement.

It is important to note that the EB-5 Regional Center Program is not a permanent program—since its instantiation, it has simply been renewed continually, for varying lengths of time. The EB-5 Regional Center Program was set to expire on September 30, 2020, but as the date approached, most EB-5 participants weren’t concerned—historically, the program has always been renewed.

Spending Legislation Passed by the House

On September 22, 2020, the House overwhelmingly passed a continuing resolution in a bipartisan vote. Called H.R. 8337, the Continuing Appropriations Act, the bill dealt with continuing government funding for a variety of critical government programs, including the EB-5 Regional Center Program. The legislation also encompassed the Emergency Stopgap USCIS Stabilization Act, which proposed expanding premium processing fees for some types of immigration. Such fee hikes are necessary to help United States Citizenship and Immigration Services (USCIS) stay afloat during a difficult time in which immigration has been largely halted due to the COVID-19 pandemic. USCIS already narrowly avoided a massive furlough in August 2020, scraping by thanks to reduced expenditure and increased revenue and receipts.

EB-5 Regional Center Program Extended to December 11, 2020

Late September 30, 2020, President Trump finally signed the continuing resolution the House had passed a week earlier in an overwhelming bipartisan victory. With that, several government programs were extended until December 11, 2020, including the EB-5 Regional Center Program. The passing of this bill allows the government to skirt a shutdown, which could be disastrous during a time of crisis catalyzed by the COVID-19 pandemic.

EB-5 investors and regional center managers may now breathe a sigh of relief, expected as this extension may have been. Come December 2020, investors, project developers, regional center owners, and others involved in EB-5 investment should tune into the latest EB-5 news to see whether the EB-5 Regional Center Program will be extended once again.

The COVID-19 pandemic has devastated the world, crippling economies, destroying livelihoods, and wreaking havoc on people’s physical and mental health alike. The EB-5 Immigrant Investor Program has not escaped the virus’s wrath, with thousands of investors unable to proceed with their EB-5 journey due to the temporary suspension of routine visa services at U.S. embassies and consulates.

However, the impact of the pandemic on EB-5 investors is not all negative—in fact, in certain ways, it has provided important advantages for those who have made EB-5 investments. From more EB-5 visas for investors from backlogged countries to a lower risk of EB-5 capital redeployment, for certain investors, it’s a good time to have an active EB5 investment. Investors with pending I-526 petitions or those with I-526 approval awaiting their visa interview are also in luck going forward: the number of available EB-5 visas for FY2021 has skyrocketed.

Annual Distribution of EB Visas

At the beginning of each fiscal year—October 1—United States Citizenship and Immigration Services (USCIS) earmarks a certain number of visas for the five EB programs. The EB-5 program, which has fifth-place preference, receives 7.1% of those visas. Typically, that results in around 10,000 EB-5 visas per year, which is generally enough to cover roughly 3,000 investors every year, considering that the majority also apply for EB-5 visas for their spouse and dependent children.

However, thanks to the wide-ranging effects of the COVID-19 pandemic and the subsequent lockdowns, FY2021 is different. Though the pandemic limited the number of EB-5 visas granted throughout FY2020, it also halted family-based immigration, and each fiscal year, any unused family-based visas from the previous year are rolled over to employment-based visas. In the average year, around 140,000 visas are made available through EB programs. In FY2021, the figure has almost doubled to 261,500. Of that, 7.1% is allocated to the EB-5 program, representing a visa budget of about 18,556 EB-5 visas.

Major Benefits to Chinese EB-5 Investors

While the huge increase in EB-5 visa allowance in FY2021 benefits everyone pursuing an EB-5 investment, it’s particularly beneficial to Chinese and Vietnamese EB-5 investors, who, as of October 2020, are the only foreign nationals subject to EB-5 backlogs. Due to the addition of Hong Kong EB-5 investors to the Chinese queue, the backlog has grown even larger, making the news of extra EB-5 visas even more welcome to Chinese EB-5 investors.

Every year, countries are entitled to up to 7% of the total number of EB-5 visas for the fiscal year. Since the number of available EB-5 visas has jumped so sharply in FY2021, so too has the number of visas available to a single country, increasing from roughly 700 to roughly 1,300. Furthermore, since USCIS estimates the number of pending I-485 petitions and documentarily qualified EB-5 visa applicants is significantly lower than 261,500, EB-5 investors can expect a large number of otherwise unclaimed EB-5 visas to be dished out to Chinese investors waiting in a several-year backlog. FY2021 is USCIS’s opportunity to dramatically reduce EB-5 backlogs, and it may be a great year for Chinese EB-5 investors, notwithstanding the switch to a visa availability processing approach in April 2020, which has, as of October 2020, negatively affected only investors from China.

The long processing times for EB-5 petitions at United States Citizenship and Immigration Services (USCIS) are no secret. EB-5 investors regularly have to wait years—as many as five for those from severely backlogged countries such as China—and as of October 2020, USCIS gives little indication of processing times decreasing. Besides the missed opportunity costs of delaying their new life in the United States, EB-5 investors face various downsides due to USCIS’s long processing times, including the possibility of their dependent children marrying and thus losing eligibility for a U.S. green card.

What can someone with an active EB-5 investment do if USCIS is taking an excessively long time to adjudicate their I-526 petition? Recourse for EB-5 investors stuck in USCIS processing limbo is limited—filing a case inquiry is possible but only if the petition was filed before USCIS’s date for case inquiry, which is displayed alongside USCIS’s estimated case processing time ranges. However, the listed date for case inquiry is so far back that it hardly encompasses any investors, virtually rendering it useless.

Filing a Writ of Mandamus

USCIS’s broken case inquiry system leaves filing a writ of mandamus as the only really viable course of action to force USCIS to adjudicate a pending petition. In the EB-5 context, a writ of mandamus is an order for USCIS to adjudicate a given I-526 or I-829 petition. EB-5 investors must be aware of the inherent danger of forcing USCIS to immediately adjudicate a petition: if there is insufficient or inconsistent information in the petition, USCIS will reject it rather than send a request for evidence (RFE), which offers an investor a second chance to salvage their EB-5 dreams.

Filing a writ of mandamus should be a last-resort measure in cases of excessively long wait times because it’s an expensive, risky endeavor that certainly doesn’t guarantee EB-5 success. Any EB-5 investor who feels that filing a writ of mandamus may be the right step for them is encouraged to consult their EB-5 immigration lawyer to review their situation and determine whether it’s a good idea. Additionally, EB-5 investors from backlogged countries—as of October 2020, China and Vietnam—must also keep in mind the naturally longer waiting times they must incur as a result of the high EB-5 demand from their country.

Precedent for Success in USCIS EB-5 Lawsuits

EB-5 investors may be concerned about filing a lawsuit against USCIS if their petition is still listed within the estimated processing time range. After all, USCIS can argue that their normal, or average, processing times are “reasonable.” However, two lawsuits against USCIS—Raju et al v. Cuccinelli and Keller Wurtz v. USCIS—show that judges disagree.

Together, the lawsuits included 11 EB-5 investors who had filed their I-526 petitions between 22 months and 29 months prior to the lawsuit date. Based on USCIS’s estimated processing time range, it’s far from abnormal to not receive an adjudication in such a time period, so by EB-5 standards, these investors were not facing excessively long wait times.

Indeed, USCIS chose to argue that delays of up to four years were “reasonable.” As evidence, they referenced their estimated case processing time ranges, which at the time spanned from 29.5 to 74.5 months (2.5 to 6.2 years). In both cases, the judges sided with the investors, arguing that the fact that USCIS takes just as long or longer to adjudicate other I-526 petitions does not prove that the waiting times are indeed “reasonable.” In this way, the judge essentially ruled that most of USCIS’s EB-5 adjudications are made with unreasonable delays.

Both judges also referenced the congressional decree that immigration applications should generally be processed in no more than 180 days. They argued that “reasonable processing times” should be counted in weeks or months, not years, and thus both lawsuits ended in victory for the EB-5 investors.

USCIS Already on Shaky Ground

These two defeats in court only add to USCIS’s hardships in 2020. Barely staying afloat financially, in August 2020, the immigration agency already narrowly avoided carrying out a major furlough where around 70% of its employees would have lost their jobs. Thousands of USCIS employees managed to hold onto their jobs thanks to reduced spending and upticks in revenue and receipts, but the longevity of these measures is unknown. The immigration body proposed filing fee increases for certain immigration petitions, including the I-526, I-829, and I-485 petitions, but the legislation was enjoined on September 29, 2020, costing USCIS millions in lost funds each day the proposal is enjoined.

Now, with the ruling of these two lawsuits USCIS may be forced to adjudicate EB-5 petitions faster. USCIS’s already unreasonably long processing times have only increased in 2020, with the agency citing the effort and changes made to avert the August 2020 furlough as reasons for further delays. However, the agency may have no choice but to straighten itself out and get to work on EB-5 petitions—the precedent set by the successes of these two lawsuits may inspire more applicants with active EB5 investments to file a writ of mandamus, and if judges continue to side with the investors, USCIS will find itself in hot water.