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How is COVID-19 Affecting EB-5 Processing and Visa Availability?

Though the COVID-19 pandemic has brought the world to a standstill, with economic shutdowns across the United States and other countries, the EB-5 Immigrant Investor Program continues on. The pandemic has caused United States Citizenship and Immigration Services (UCSIS) to temporarily close its offices to the public all across the nation, but since application processing doesn’t require face-to-face interaction with the public, it has continued to adjudicate I-526, I-829, and I-485 petitions throughout the crisis.

As of June 1, 2020, USCIS is preparing to reopen its offices to the public on or after June 4. However, even after the reopening, USCIS still plans to offer deadline extensions for requests for evidence (RFEs) and notices of intent to deny (NOIDs) issued between March 1 and July 1. USCIS has announced on its “Response to COVID-19” page that responses to such notices received within 60 days of the deadline stipulated on the notice will be accepted and considered.

What will happen with the EB-5 program going forward in 2020 is anyone’s guess. The modern world has never experienced a pandemic of this magnitude before, so the consequences are impossible to know. Nonetheless, it’s possible to make some predictions about what could happen.

More Lawyer Involvement in EB-5

The Immigrant Investor Program Office (IPO) recorded famously low I-526 adjudication rates in FY2019, with productivity dropping as much as four times compared to FY2018. The stark difference in processing volumes can largely be attributed to the management of Sarah Kendall, who took over the IPO in FY2019. The unprecedently low processing volumes have caused headaches for EB-5 investors and eroded trust in the program, and this situation may be a factor in the sudden drop in EB-5 demand in India.

In 2019, the IPO got away with essentially failing to do its job, but that may change in 2020. With almost the entire world on lockdown, lawyers have little to do in 2020, so they may set their sights on the EB-5 program, turning investor lawsuits against USCIS into one of their few viable sources of income during the crisis. Indeed, the delays are unreasonably long and are jeopardizing the EB-5 program’s ability to foster economic growth and revitalization, and EB-5 investors forgotten by the system have a right to recourse. The best strategy for the IPO would be to take the opportunity the pandemic has afforded it to start clearing up the backlog and avoid the lawsuits that might pour in otherwise.

EB-5 Visa Availability for Consular Processing

With all U.S. embassies and consulates suspending routine visa processes, consular EB-5 processing has come to a halt. Visa appointments have ceased, so overseas EB-5 investors can do nothing but wait for the pandemic to pass and the consulates to resume services. As of June 1, 2020, the U.S. consulates in China, India, and Vietnam have all yet to announce plans to resume visa appointments, meaning the wait for EB-5 investors will continue for the foreseeable future. Thus, even though EB-5 visas can still legally be issued, the consulate closures prevent this from happening.

In October 2019, the beginning of FY2020, the Department of State announced that 11,112 EB-5 visas were available for FY2020. It further explained that India and Vietnam could both receive 778 visas and Chinese EB-5 investors could receive an estimated 5,270 leftover visas. Under normal circumstances, the yearly available visas are distributed roughly equally throughout the year—one quarter per quarter—but the worldwide consulate closures make this even distribution impossible in 2020, with the actual numbers vastly lower than the expectations in October 2019.

Progress of EVB-5 visa issuance as of 4/30/2020

Possible Routes of FY2020 EB-5 Visa Processing

Given the COVID-19 pandemic and the U.S. consulate closures, FY2020 is anything but a normal year for the IPO. Only time will tell how EB-5 visas are ultimately issued, but a few scenarios are possible:

Visas Could Go to Domestic EB-5 Investors

Not all EB-5 investors invest from overseas—some already live in the United States on different visas and claim their EB-5 permanent resident status by filing Form I-485 to adjust their immigration status. Since USCIS doesn’t release information on pending I-485 petitions, it’s not clear how many domestic EB-5 investors are available to claim visas, but previous years have shown that domestic applicants account for only a small minority of all EB-5 investors. Furthermore, the rapidly advancing final action dates in the months of the pandemic suggest that the I-485 backlog may be fairly small. Thus, even if the I-485 backlog is entirely cleared up, there are likely to still be many leftover visas.

Visa Processing Might Catch Up by the End of the Fiscal Year

If the U.S. embassies and consulates reopen soon enough and catch up on all the visa appointments they missed during the pandemic, USCIS may be able to pick up the pace and issue all the available visas before the fiscal year ends on September 30, 2020. Different embassies and consulates may reopen at different times, but the most important are the ones in China, as Chinese investors account for the largest EB-5 backlog.

Visas Might Roll Over to EB-1 FY2021

If, conversely, the consulates remain closed for a while yet, it’s unlikely that they can catch up to demand before the end of FY2020. If USCIS can’t issue all the allocated EB-5 visas before September 30, 2020, the leftover visas will roll over to EB-1 in FY2021, and the EB-5 program will suffer a loss of visas in FY2020, further aggravating the backlogs.