An announcement on January 29, 2020, revealed that USCIS will shift its I-526 petition processing approach from first-in-first-in (FIFO) to a “visa availability approach” starting March 31, 2020. The new approach aims to prioritize processing for applicants from countries that have visas immediately available, ensuring more countries fill their annual visa allocations. Otherwise, there are no major requirement changes.

It is already clear who this new change benefits and who it hurts.

Good for I-526 applicants from countries with immediately available visas: EB-5 applicants from countries without backlogs, such as Canada, the United Kingdom, and the Philippines, stand to benefit the most from this new change.

Good for I-526 applicants from backlogged countries with children at risk of aging out: Children may immigrate through the EB-5 program with their family only if they are under the age of 21. However, the Child Status Protection Act (CSPA) protects the children of EB-5 investors by allowing leeway for the amount of time the I-526 petition remained pending with USCIS. On the date a visa becomes available, the number of days it took to adjudicate the I-526 petition, from date of filing to date of approval, is subtracted from the child’s actual age.

In contrast, the clock begins ticking again after I-526 approval while applicants wait for visas to become available. Consequently, for children at risk of aging out of the program, a delay at the point of I-526 processing is beneficial if it potentially reduces the delay before visas becoming available.

Bad for I-526 applicants from backlogged countries: The new changes will further slow processing times for applicants from backlogged countries—Mainland China, India, and Vietnam. Children will be protected from aging out, but the whole family will have to wait even longer to immigrate. As investors are required to keep their investments at risk throughout the entire process, these investors will additionally be exposed to increased financial risk.

Bad for I-526 applicants in mismanaged projects with no priority date retention protection: Under the November 2019 EB-5 rule changes, in some cases an investor who has already received I-526 approval may file a new I-526 petition with the first application’s priority date. This hurts applicants who invested in mismanaged projects and lose their priority date due to fraud or a terminated regional center, increasing the wait time for them.

Bad for USCIS: Though USCIS claims to currently adjudicate I-526 petitions on a FIFO basis, in reality, petitions associated with EB-5 projects with exemplar approval are often given priority. Overall, the current processing statistics reveal that USCIS has hardly been adjudicating anything lately anyway. If USCIS does not pick up the pace, backlogs in additional countries may also form.

On March 13, 2020, USCIS will answer questions and field concerns from the public regarding the new changes in a public engagement. If you would like to attend the engagement in person, send an email to public.engagement@uscis.dhs.gov. There are limited seats, so we recommend registering as soon as possible. You can also send general questions to be addressed as agenda items to the above email address before 5 p.m. EST on February 11.

Alternatively, you can join the engagement via teleconference. You should call in 10 to 15 minutes before the conference begins.

Domestic toll-free number: (888) 946-7792

Toll number for international callers: (517) 308-9375

Participant passcode: 3996336