Participants in EB-5 investments have long been concerned about processing times, which have grown increasingly longer throughout the 2010s as with a rise in EB-5 Immigrant Investor Program demand and a fall in United States Citizenship and Immigration Services (USCIS) productivity. It has become commonplace to wait two or three years to receive conditional permanent residency for a qualifying EB5 investment—and five or more years for investors from backlogged countries, particularly China. But as USCIS and the Immigrant Investor Program Office (IPO) cycle through different leaders, productivity rates fluctuate. Notably, productivity took a particularly steep hit in 2019 and 2020 under the reign of Sarah Kendall.
EB-5 processing times remain unstable as the world begins to emerge from the horrors of the COVID-19 pandemic. Those with active EB-5 investments are looking for guidance on their estimated wait times to start a new life in the United States with their immediate family members—but unfortunately, USCIS’s estimated processing time ranges are misleading and difficult to understand. The intuitive interpretation is that the majority of EB-5 petitions are adjudicated between the two times indicated in the range, but in fact, most are adjudicated outside of it. The figures in the range are the time by which 50% of petitions are adjudicated and the time by which 93% of the petitions are adjudicated, accounting for only 43% of petitions. Moreover, the figures are based on data from a couple months prior and thus may not be exact.
With USCIS’s estimated processing time ranges painting a confusing—and extremely bleak—picture, EB-5 stakeholders took solace in the “Historical National Average Processing Times,” published on a different page, which provided far lower estimates. While USCIS would report estimated waits of as high as six years on their Check Case Processing Times page, the historical average processing times would reflect wait times of just 14 months. Unfortunately, the historical average processing times were also misleading.
Why the Historical National Average Processing Times Were Inaccurate
To calculate the historical national average processing times, USCIS didn’t record how many months each petition had been pending at the time of adjudication and calculate the average of all those figures, as one would reasonably assume. Instead, the historical national average processing times were calculated as the “average age of all petitions currently pending.” In this way, petitions that were not slated for adjudication—such as newly filed petitions—were counted in the average, bringing down the historical average processing figures and presenting a misleading number. In times of elevated EB-5 demand—such as in October and November 2019, when thousands of EB-5 investors clamored to submit their I-526 petitions before the Modernization Rule hiked up the minimum required investment amounts—the calculations were particularly skewed.
This botched calculation method was a lose–lose situation for USCIS and EB5 investment participants. EB-5 investors were operating on false hope that their petition would be adjudicated relatively quickly, experiencing disappointment, frustration, and anxiety when the actual processing times turned out to be much longer. USCIS, conversely, was faced with Mandamus complaints wherein EB-5 investment participants cited the historical average processing times as proof that their petition was being unreasonably delayed.
The Switch to Historical National Median Processing Times
In April 2021, USCIS finally updated their historical processing times page, this time calling it the “Historical National Median Processing Time.” No, they haven’t just taken the median age of all petitions currently pending under the guise of making a meaningful update—the new calculation is actually derived from processed petitions, not pending petitions. The historical processing times now use the same calculation as the processing time ranges and should more accurately reflect reality.
The huge discrepancy between the figures in the two calculation methods is immediately apparent. What was previously listed as 14 months for FY2020 has been adjusted to 31 months under the new method. Processing times in FY2021 are also listed as 31 months, a large jump from 19 in FY2019. The new calculation makes clear that productivity at the IPO has collapsed after FY2019, even with the introduction of the visa availability processing approach in April 2020. The new adjudication method, which was supposed to reduce processing times, seemingly has had no effect as EB5 investment participants wait longer and longer for I-526 adjudication. At least now the EB-5 community has more accurate figures with which to gauge their wait times.