If anyone looks up the estimated processing time range for I-829 petitions as listed on the United States Citizenship and Immigration Services (USCIS) Check Case Processing Times page today, November 3, 2020, they may be in for a shock. The lower figure in the range is 36.5 months—nothing shocking about that number—but the higher figure is an astounding 234 months, or 19.5 years. Nearly two decades to remove the conditions from an EB-5 investor’s conditional permanent resident status? Don’t fret—wait times of nearly 20 years are not “normal.”
USCIS may refer to its estimated time ranges as “normal processing times” when communicating with stakeholders, but this usage is by definition inaccurate. Though a newcomer’s assumption may be that the majority of I-829 petitions are adjudicated within the indicated time range, the truth is that 50% are processed even before the lower number in the range. The lower number specifically represents the time by which 50% of applications have been processed, while the higher number is reserved for the time by which 93% of petitions have been adjudicated. Assuming a perfectly accurate calculation, this leaves 50% adjudicated before the indicated time range, 43% adjudicated within the time range, and 7% adjudicated after the time range.
Therefore, those with active EB-5 investments may look to the first number in an estimated time range to derive an idea of typical processing times, but the higher number specifically represents outlier petitions. Unfortunately, however, USCIS uses the higher number in an estimated time range to calculate the date for inquiry into abnormally long processing times, and when the higher figure is nearly 20 years in the past, the case inquiry date is so long ago it effectively discourages all inquiries. As of November 3, 2020, the case inquiry date for I-829 petitions is May 20, 2001.
A similar pattern has been seen in late FY2020 with I-526 petition processing times. In July 2020, the estimated processing time range for I-526 petitions nearly doubled, leaving investors with case inquiry dates five or six years prior. The entire move was mysterious, given that statistics showed hardly any pending I-526 petitions from so long ago, and was thought to have perhaps been intended to quell case inquiries entirely.
So what is a normal I-829 processing range?
Since the estimated processing time ranges aren’t that helpful in calculating an EB-5 investor’s estimated wait time, the best way to derive this figure is through actual processing data from previous quarters. Though such data also cannot provide 100% accurate predictions, given that various factors can impact processing at any time, including pandemic-induced shutdowns or financial instability at USCIS, it provides a glimpse into what was previously normal, as well as insight into the discrepancies between the estimated processing time range and the actual processing figures.
According to the statistics for I-829 adjudications in FY2019 Q1 (October–December 2018), most petitions that were adjudicated (79%) had been pending for fewer than 30 months. A large number were processed in just 18–24 months. Compare these figures to the estimated processing time range issued in December 2018 (30–39 months), and it’s easy to see how misleading the time range can be.
Of course, statistics from late 2018 don’t necessarily reflect the reality in late 2020, especially given all the changes and challenges 2020 has brought. The I-829 processing times in 2020 depend on USCIS’s productivity, and while real-time processing data is not available, I-829 adjudication data up to and including FY2020 Q2 is available on USCIS’s Citizenship & Immigration Data page. The below chart shows trends in USCIS productivity by quarter since FY2015 Q1, revealing clear fluctuations in USCIS’s I-829 adjudication productivity over years. The good news is that after calendar year 2019’s dismally low figures, productivity in FY2020 Q2 was up. If USCIS continues this trend, those with EB5 investments waiting for I-829 approval may not need to wait nearly as long as the estimated processing times indicate.
Why is the estimated time range so long?
USCIS provides no reasoning for the ridiculously long estimated processing time range, but it could be as simple as a typo or a made-up number. The most likely scenario is that a series of I-829 petitions that have been held up since 2002 due to legal complications have finally begun to be processed.
Between 1995 and 1998, USCIS approved several I-526 petitions that it would later deem problematic. Precedent decisions by the Immigration and Naturalization Service (INS), the U.S. immigration body that preceded USCIS, on EB-5 eligibility requirements changed the rules and left those who had applied prior in limbo. This led to litigation, and finally, in 2002, Congress passed Public Law 107-273, which allowed affected investors to tweak their EB5 investments to satisfy the new rules and obtain their U.S. permanent resident status. The law ruled that the immigration body must publish the regulations within 120 days, yet in 2019, 17 years later, the regulations still had yet to be published. The new inclusion of two-decade-old I-829 petitions in the estimated processing time range implies USCIS may finally be adjudicating these I-829 petitions that had been left behind for so long.
In that sense, while a processing time range of “36.5 to 234 months” may appear terrifying at first glance, it may actually be a good thing. EB-5 investors who have been waiting nearly 20 years for adjudication may have finally received it, and any new investors should be spared such long wait times as long as they aren’t subjected to any mismanaged retroactive rule changes.