With the global economic shutdowns brought on by the COVID-19 pandemic, United States Citizenship and Immigration Services (USCIS) has had more time to dedicate to processing immigration petitions such as Form I-526. The chief of the Immigrant Investor Processing Office (IPO), Sarah Kendall, also announced in a public engagement in March 2020—before the pandemic had substantially impacted the United States—that the office was better positioned than in FY2019 to process EB-5 petitions. Processing data from FY2020 Q2 indeed bears out the prediction of increased productivity, although the true state will not be known until data is released for the latter two quarters.
If USCIS’s estimated processing time range is any indication of processing productivity, the outlook for EB-5 investors may be bleak. USCIS has updated the estimated time range for I-526 processing to 46 to 74.5 months—an increase of more than a year. In May 2020, the estimated processing range was only 29.5 to 44.5 months, meaning the entire range has nearly doubled as of July 2020.
The range also starkly contrasts the most recent estimated processing range update, which was 29.5 months to 61 months. While the latter estimate increased significantly, the former remained stable, but in the newest iteration, both have surged forward, leaving EB-5 investors to expect wait times of 3.8 to 6.2 years for I-526 processing.
When looking at USCIS’s estimated time ranges for petition processing, EB-5 investors must understand what they represent. Not all investors have their petitions adjudicated within the estimated time range—in fact, the majority don’t. Half of investors receive an adjudication before the first number in the range, and 93% of investors receive an adjudication before the second number in the range. Thus, many EB-5 investors can expect a far faster adjudication than seemingly indicated.
Not Necessarily a Slowdown in I-526 Processing Volume
While the initial assumption most people have upon looking at these figures is that the processing volume at the IPO has slowed drastically, that isn’t necessarily the case. With some I-526 petitions seemingly forgotten, left unadjudicated for years on end, the IPO may be taking measures to prevent applicants from filing inquiries or even pursuing litigation.
Also important to note is that the estimated processing time range may not be entirely accurate, since USCIS does not factor the newly implemented visa availability approach into its calculations. The new approach, introduced in April 2020, prioritizes I-526 adjudications based on the number of readily available visas for the EB-5 investor’s country, meaning petitions from countries without backlogs may be adjudicated more quickly than those from backlogged countries (which, as of July 30, 2020, consist of China and Vietnam). The EB-5 community will not know the true picture of EB-5 processing volume until detailed statistics are released for FY2020 Q3 and Q4.