New EB-5 Visa Availability Approach for I-526 Petition Processing

Important Breaking Announcement from USCIS on January 29, 2020: EB-5 visa I-526 petitions will now start being processed using a visa availability approach instead of using a first-in-first-out (FIFO) approach. Historically, USCIS has always processed EB-5 visa I-526 petitions based on a FIFO process, however this change will radically change the processing approach which will now favor EB-5 applicants from countries not facing retrogression.

The Immigrant Investor Program Office (IPO) will now prioritize processing EB-5 I-526 petitions from applicants from countries where visas are immediately available (non-backlogged countries). The goal of this approach is to speed up processing times for underrepresented countries with no visa backlog [countries that have not used up or are close to using up their per-country annual visa allocation]. Note that there are roughly 770 EB-5 visas available per country for FY 2020. 

Concern for Investors from Backlogged EB-5 Countries

Essentially, EB-5 investors with pending I-526 petitions from backlogged countries [mainland China, India, Vietnam] will now face additional waiting time for approval compared with EB-5 applicants from non-backlogged countries such as the Philippines, Canada, and the UK. This new visa processing approach will go into effect on March 31, 2020.

EB-5 investors from backlogged countries with pending I-526 petitions can voice their concerns at the USCIS public engagement on March 13, 2020, or by contacting the Immigrant Investor Program Office.

Below is the exact text from the press release issued by USCIS on January 29, 2020, which addresses the EB-5 Form I-526, Immigrant Petition by Alien Investor, processing changes:

USCIS Adjusts Process for Managing EB-5 Visa Petition Inventory 

Change Addresses Fairness Issues in Visa Allocation

Release Date: Jan. 29, 2020

WASHINGTON— U.S. Citizenship and Immigration Services today announced a process change for Form I-526, Immigrant Petition by Alien Investor, from a first-in, first-out basis to a visa availability approach.

This new operational approach aligns with other visa-availability agency adjudications processes, is more consistent with congressional intent for the EB-5 Immigrant Investor Program, and increases fairness in the administration of the program.

“Changing our approach from a first-in, first-out adjudication process to one that prioritizes petitions connected to individuals from countries where visas are currently available better aligns the EB-5 program with congressional intent and makes it more consistent with other USCIS operations,” said USCIS Deputy Director Mark Koumans. “This new approach increases fairness, allowing qualified EB-5 petitioners from traditionally underrepresented countries to have their petitions approved in a more timely fashion to receive consideration for a visa.”

This operational change is consistent with the agency’s processing of Form I-130, Petition for Alien Relative, in cap-subject categories. The new visa availability approach simply gives priority to petitions where visas are immediately available, or soon available, and will not create legally binding rights or change substantive requirements. Applicants from countries where visas are immediately available will now be better able to use their annual per-country allocation of EB-5 visas. The new visa availability approach will apply to petitions pending as of the effective date of the change. USCIS will implement the visa availability approach on March 31, 2020.

USCIS will hold a public engagement on March 13, 2020, from 11:00 a.m. to noon Eastern, to provide information and answer questions from the public about these operational changes to the management of Form I-526 petition inventory.

This engagement is part of our ongoing efforts to enhance dialogue with the public on the EB-5 program. USCIS will address program updates, including the agency’s change from a first-in, first-out case-processing approach to a visa availability approach for Form I-526, Immigrant Petition by Alien Investor. You will have an opportunity to ask questions during the engagement.

Participation Details:
You may attend this engagement either in person at USCIS, 111 Massachusetts Ave. NW, Washington, D.C., or by teleconference.

If you wish to attend in person, please email  public.engagement@uscis.dhs.gov. Seating is limited, so we encourage you to email early to request in person registration. Once we process your registration, you will receive a confirmation email with additional details.

To submit non-case-specific questions as agenda items before the engagement, email us at public.engagement@uscis.dhs.gov by 5 p.m. Eastern on Tuesday, Feb. 11.

To join the event via teleconference:
Call in Toll Free number: (888) 946-7792
Toll number for international callers: (517) 308-9375
Participant Passcode: 3996336

We recommend calling in 10 to 15 minutes before the teleconference begins.