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On July 18, 2023, the United States Citizenship and Immigration Services (USCIS), announced that it is updating its visa availability approach for Form I-526 (Immigrant Petition by Alien Investor) to boost efficiency in processing and reduce backlogs. The change focuses on optimizing the adjudication process for investors seeking U.S. Green Cards through the EB-5 Immigrant Investor Program.

The EB-5 program provides foreign investors the opportunity to receive U.S. Green Cards for themselves and their qualifying family members (spouse and children under the age of 21) with a minimum investment of $800,000 in a government pre-approved real estate project in the United States. The first step in the EB-5 process is filing Form I-526 with USCIS which includes the personal and financial information of the applicant and dependents as well as information regarding the investment in the United States.

Recently the EB-5 program has experienced backlogs due to various factors, including operational disruptions caused by Covid-19 and layoffs resulting from a decline in revenue. Despite the previous challenges faced by the EB-5 program, the processing speed of I-526 petitions is now accelerating due to several favorable factors. These include a surge in revenue driven by heightened demand, the normalization of government offices from pandemic-related impacts, and the dedication of the Immigrant Investor Program Office (IPO) to hire additional staff to increase efficiency and diminish backlogs.

In line with its objective to increase efficiency, USCIS announced that it is updating its visa availability approach with regard to petitions filed on or prior to November 30, 2019. While this update mainly affects EB-5 petitions filed before passage of the EB-5 Reform and Integrity Act of 2022, its positive effects will surely trickle down to other EB-5 petitioners and prospective applicants.

Three Monthly Workflows

As discussed during the EB-5 National Stakeholder Engagement hosted by USCIS on October 19, 2022, the visa availability inventory management approach of USCIS involves dividing I-526 petitions into three workflow queues on a monthly basis:

1. Queue 1: This queue includes petitions where visas are neither currently available nor expected to become available soon. These petitions are processed on a first-in, first-out (FIFO) basis. As explained by Kevin Muck, Division Chief of IPO Division, “These cases are added into the second or third queues (described below) each month if visa availability is established according to the calculation described above. If so, at the beginning of each month, petitions move into the second queue if a project review is required, or into the third queue if a project review has been completed or if the petition is a non-pooled (single investor) “standalone” case (that is, not associated with a regional center).”
2. Queue 2: Petitions related to projects that have not been previously reviewed by IPO but have an immediately available or soon-to-be-available visa are placed in this queue. The projects in this queue are reviewed in order from oldest to newest. As stated by Kevin Much, “After the project review is complete, any petitions from the second queue associated with that same project will be added to the third queue to be assigned out for adjudication so long as a visa is still available or soon to be available. The purpose of reviewing the project is so that USCIS may examine evidence that may apply across multiple Form I-526 petitions up front (that is, before the associated petitions are assigned to various adjudicators).”
3. Queue 3: The third queue is reserved for I-526 petitions with an available or soon-to-be-available visa and either a reviewed project or a standalone project with a single investor (non-pooled). This queue has traditionally followed the FIFO order for assigning petitions to adjudicators.

Update to Queue 3

The July 2023 update introduces a pivotal change to the process in Queue 3. Instead of assigning petitions purely on a FIFO basis, USCIS will now group petitions by New Commercial Enterprises (NCE) with filing dates on or before November 30, 2019. Each group of petitions associated with a particular NCE will be assigned to adjudicators using the FIFO methodology, based on the date of the earliest filed petition for that specific NCE. This change will increase efficiency as adjudicators will be handling multiple petitions associated with the same NCE.

According to the update issued by USCIS, “Given the large volume of petitions filed shortly before the EB-5 modernization rule had taken effect in November 2019 and because the project documents are often the same, assigning multiple petitions associated with the same NCE to the same adjudicator(s) will enable IPO to gain greater processing efficiencies, reduce the backlog and Form I-526 completion times, and support consistency and accuracy in adjudications, while maintaining fairness given the closeness in the filing dates of these petitions.” This update along with IPO’s commitment to hire additional staff are great indicators that the processing of EB-5 petitions will soon speed up.

The new approach and the emphasis placed on increasing efficiencies is great news for prospective EB-5 investors as they can look forward to a more organized and expeditious adjudication process. With these positive changes to adjudication of EB-5 applications, industry experts expect newly filed applications to be processed in around 24 months.

If you are a prospective investor and would like to learn more about the EB-5 program, you may reach out to our team of U.S. licensed lawyers and professionals for more information and a complimentary initial consultation.