By Bernard Wolfsdorf
When I first started filing EB-5 petitions many years ago, my clients were frustrated if their EB-5 petitions took 6 months to process. Today, USCIS’ published processing time for an I-526 petition is between 30 and 48.5 months, and if from China, which is quota backlogged, it is between 63.5 and 80.5 months.
USCIS’ recently released performance data provides a potential glimpse into the future regarding Form I-526, Immigrant Petition by Alien Entrepreneur processing. In Q1 of FY 2021 (October to December 2020), the Immigrant Investor Program Office adjudicated over 1,100 Forms I-526, the second quarter in a row with over 1,000 adjudications (and the most in two quarters for nearly 2 years). With COVID-19 expected to recede, USCIS employees soon heading back to work, and the NVC backlog set to decrease, “normal” processing for EB-5 investors may not be too far out in the distance.
For the past couple of months, WR Immigration has been receiving approvals for Forms I-526 filed in Q1 of FY 2019 (October to December 2018). Less than 2,400 Forms I-526 were filed the rest of that fiscal year, before over 4,200 new cases were submitted in Q1 of FY 2020 (October-December 2019) in anticipation of the EB-5 Modernization Rule becoming effective and the minimum investment amount increasing to $900,000. At this rate, the remaining cases filed in FY 2019 could be adjudicated by September 2021.
Based on the current slow rate of new petition filing and provided USCIS maintains it current policy of putting backlogged petitions (presently only Vietnam and China) at the back of the adjudication line, it appears conditional green card processing in 2022 and beyond, may take only about 2 years. At this rate, all the remaining pending cases could be adjudicated within the next 3 years.
The facts are clear. The number of new EB-5 case filings has fallen dramatically since USCIS increased the minimum investment amount to $900,000. As a result, it is realistic to guesstimate that immigrant investors who submit a Form I-526 in the next 1-2 years could be looking at processing times of as little as 1-2 years for their green cards, provided the applicant is not from a country that is backlogged and has exceeded its per country quota. While China and Vietnam are the only two backlogged countries presently, it is expected that India may also retrogress at some point in the near future.
