Throughout the late 2010s, EB-5 investors and other stakeholders have grown wary of policy updates from United States Citizenship and Immigration Services (USCIS), which have often been negative—and applied retroactively. A case in point is the redeployment policy update that came in July 2020, which the immigration agency applied retroactively by officially terming it a “clarification,” not an update. Additionally, with about two years under the leadership of Sarah Kendall, productivity at the Immigrant Investor Program Office (IPO) has fallen significantly, with processing times skyrocketing and EB-5 investment participants growing increasingly disgruntled.
But changes in leadership may be turning the tides. Kendall left her post at the IPO in November 2020, and though the results of her successor, Nick Colucci, have yet to be seen, the EB5 investment community remains hopeful that the dark days of the Kendall reign are over. USCIS leadership is changing as well, with Biden’s nomination for the head of USCIS, Ur Maddou, promising to modernize the U.S. immigration system.
On June 9, 2021, USCIS came out with new policy updates, proving the pro-immigration rhetoric wasn’t mere talk. The modified policies are favorable to EB5 investment participants and are hopefully indicative of more changes to come down the road.
Clarifications for Expedited Processing Eligibility
In the late 2010s, speed has hardly come to mind when discussing EB-5 petition processing times. The idea of expedited processing surely excites many individuals pursuing EB-5 investments, no matter how difficult it may be to obtain. The latest USCIS policy update clarifies the criteria and conditions for expedited processing, painting a clearer picture of who is eligible for this fast-track path to U.S. permanent residency rights. The policy update also restores the ability of registered nonprofit organizations providing a service for the cultural or societal benefit of the United States to request expedited processing for immigration benefits.
More Reliance on RFEs and NOIDs
No EB5 investment participant wants to receive a request for evidence (RFE) or notice of intent to deny (NOID), but it’s certainly preferable to a denial. Though NOIDs are highly concerning, RFEs don’t necessarily mean USCIS will deny an I-526 petition or an I-829 petition—rather, it means certain information necessary for the adjudicator to make a decision is missing or unclear. As long as the applicant responds with the appropriate documentation within the allotted timeframe, in most cases, USCIS approves the petition, and the individual goes on to have a successful EB5 investment.
In 2013, USCIS ruled that adjudicators must issue an RFE or a NOID unless they determined that the applicant could not possibly supply sufficient evidence for an approval. In 2018, this was overturned, with USCIS declaring that adjudicators may deny petitions simply for lack of evidence without first issuing an RFE. EB-5 investment participants and others denied in this way simply had their cases reopened or filed new petitions with the missing evidence, resulting in headaches for immigrant hopefuls and an inefficient use of time and resources for USCIS. The June 9, 2021, policy update reverts back to the 2013 rules, where adjudicators generally must issue an RFE or NOID, unless the existing evidence is already sufficient to determine ineligibility. This update is a huge positive for those with EB-5 investments, who are essentially guaranteed a second chance if the documentation they have submitted is insufficient or unclear.
Longer Validity for Employment Authorization Documents
Long wait times characterize much of the EB-5 investment process, including for investors who apply domestically. Foreign nationals residing in the United States on a nonimmigrant visa are eligible to participate in the EB-5 program, and their journeys are mostly identical to those of overseas applicants, except that they file Form I-485 to adjust their immigration status rather than apply for their green card through consular processing.
Since USCIS processing times are long across the board, those who have made an EB-5 investment from within the United States do not necessary experience faster processing times. In fact, USCIS can take a year or more to process I-485 petitions. Without a work permit, this wait time could put an applicant in a precarious personal situation—and providing welfare services would be a burden on the U.S. taxpayer. That’s why USCIS offers employment authorization documents (EADs), which allow applicants to work while their I-485 petition is pending.
Previously, EADs and their renewals were valid for a one-year period, but with the ever-increasing processing times at USCIS, the immigration agency has opted to switch to a two-year validity period. This is a win–win: immigration applicants, including EB-5 investors, can work while they wait for their adjustment of status decision, and USCIS can reduce the number of EAD applications it receives, freeing up more time to adjudicate the pending petitions themselves.