On Friday, March 13, 2020, United States Citizenship and Immigration Services (USCIS) held a public engagement to discuss the switch to a visa availability approach in I-526 processing. The public was invited to participate via teleconference and ask questions related to the new approach.
The speakers were Sarah Kendall, chief of the Immigrant Investor Program Office (IPO), and Charles Oppenheim, chief of the Visa Control and Reporting Division from the Department of State. In addition to discussing the switch from a first-in-first-out processing methodology to a visa availability one, the speakers touched on the EB-5 Modernization Regulation. The public engagement ended with a question-and-answer session open to the public, which particularly proved to be a wealth of valuable information.
The Visa Availability Approach
The apparent intent behind the adoption of the visa availability approach is to better align the processing for the EB-5 visa with that of other visa programs and to achieve a visa allocation more in line with congressional intent for the program. Kendall described the new approach as one that prioritizes I-526 petitions for which EB-5 visas are immediately available or soon to be available.
The new approach, which went into effect March 31, 2020, applies to all I-526 petitions unassigned as of March 31, 2020, including I-526 petitions currently pending. The approach applies to most I-526 petitions received after March 31, 2020. Investors who have already received a request for evidence (RFE) or notice of intent to deny (NOID) will not be affected.
The Most Heavily Impacted Investors
According to Kendall, under the visa availability approach, the IPO uses the Chart B Dates for Filing dates in the monthly Visa Bulletin released by the U.S. Department of State. If, based on the dates, the EB-5 investor would be ineligible to apply for a visa that month, the I-526 petition will not be assigned for adjudication.
This indicates only investors from Mainland China will be negatively impacted, as China is the only country for which the Date for Filing is not current. While this is bad news for Chinese EB-5 investors, it’s good news for Indian and Vietnamese investors, who would also be subjected to longer wait times if the IPO based its assignment decisions on Chart A. However, since the number of I-526 petitions filed by Indian and Vietnamese investors exceeds the annual country cap for visas, in time, Indian and Vietnamese EB-5 investors may also fall victim to the visa availability processing approach.
The visa availability approach dictates only which I-526 petitions will not be adjudicated—it does not determine which ones will be. Therefore, EB-5 investors from underrepresented countries should not except immediate processing even when the new processing approach kicks in. It is impossible to say which country’s EB-5 investors will most heavily benefit from the new approach.
Exceptions to the Visa Availability Approach
USCIS has expressed its intention to adhere strictly to the EB-5 visa availability process, save for two exceptions. The first exception is expedite requests, which USCIS intends to honor regardless of the petitioner’s country of origin. The second exception is EB-5 investors subject to longer wait times under the visa availability approach whose spouse is a national of an underrepresented country. Such investors may email the IPO to explain the situation and obtain visas based on the spouse’s nationality.
Number of Visas Available
When asked whether the visa availability approach would affect the number of EB-5 visas available, the speakers responded that both the EB-5 quota and per-country limit would remain unchanged. While the visa availability approach is designed to limit the number of leftover visas by maximizing the number of visas issued to EB-5 investors not from backlogged countries, Oppenheim indicated his belief that the number of leftover visas would not change for the next 12 to 18 months.
By its nature, the visa availability approach has the potential to reduce I-526 processing times, but whether it actually will is another story. Kendall specifically refused to discuss the current I-526 backlogs, stating that the IPO refrains from discussing figures with the public. She explained that the low processing numbers in FY2019 were due to increased anti-fraud measures and stressed the importance of such measures in the success of the EB-5 program. Kendall’s answer suggests that processing volume is not likely to increase significantly in FY2020 after FY2019’s remarkably low figures.
Indian EB-5 Backlogs
Also noteworthy was the announcement that unless the number of petitions increases, the backlog for Indian EB-5 investors is expected to disappear by the summer and not reappear in the foreseeable future. USCIS has been seeing a decrease in I-526 petitions filed by Indian EB-5 investors, which has allowed the final action date for Indians in the monthly Visa Bulletin to jump ahead significantly.
The switch to the visa availability approach is not the only factor influencing the EB-5 program. As COVID-19 spreads further and further across the globe, countries worldwide are beginning to close their borders and shut down public life, and consulates are not immune. The closure of the U.S. consulate in China has already resulted in a lack of movement of the final action and filing dates for Chinese EB-5 investors and has made them unavailable to receive leftover visas, which the IPO intends to assign to Vietnamese investors until the consulate in China reopens.
No other questions about the potential impacts of COVID-19 were raised at the public engagement, even though the closure of consulates in further countries and interruptions in service center operations in the United States are thinkable.
- The speakers refused to address questions related to travel ban countries and urged affected individuals to email their inquiries to USCIS.
- USCIS has released a FAQ page on the EB-5 Modernization Regulation.