By: Joseph Barnett
On January 29, 2020, USCIS announced a process change for Form I-526 applications to a “visa availability approach”. USCIS wrote to stakeholders this morning:
The new visa availability approach simply gives priority to petitions where visas are immediately available, or soon available, and will not create legally binding rights or change substantive requirements. Applicants from countries where visas are immediately available will now be better able to use their annual per-country allocation of EB-5 visas. The new visa availability approach will apply to petitions pending as of the effective date of the change. USCIS will implement the visa availability approach on March 31, 2020.
USCIS will hold a public engagement on March 13, 2020 to provide information and answer questions from the public about this operational change, a variation that Wolfsdorf Rosenthal LLP Managing Partner Bernard Wolfsdorf has raised in prior EB-5 stakeholder engagements and at national EB-5 conferences. Here are the winners and losers from this new policy:
Winner – Rest of World (ROW) Investors with Pending Form I-526s: The biggest winner appears to be EB-5 investors not born in mainland China, Vietnam, or India whose pending I-526 application may be approved quicker than before.
Winner – Backlogged Country Cases With Aging-Out Children: This is good news for parents whose children would potentially otherwise “age out” and not be able to immigrate with the rest of the family. Under the Child Status Protection Act (CSPA), a child’s CSPA age is calculated by subtracting the number of days that the Form I-526 was pending with USCIS (from date of receipt to date of approval, including any period of administrative review) from the actual age of the applicant on the date that the visa became available. The time waiting for a priority date to become current is not taken into account. So, longer I-526 processing times can assist those stuck in a visa waiting line from “aging out”.
Loser – Chinese, Vietnamese, and Indian Investors Stuck in the Backlog: Despite the potential benefit to their children, this must be gut-wrenching. Not only will there be a separate track for those in backlogged countries to get their I-526s approved, but their investments will need to remain “at risk” for a longer period too, which subjects them to even further risks related to redeployment and material change.
Loser – Those in Troubled Projects who cannot Benefit from Priority Date Retention Protection: The new EB-5 regulations allow, in some circumstances, an EB-5 investor with an approved I-526 to file a new EB-5 petition and retain the earlier application’s priority date. The delay of a I-526 approval means fewer options for investors who invested in mismanaged projects, or subject to fraud or Regional Center terminations.
Loser – USCIS: Based on our firm’s experience, I-526 applications are not always adjudicated on a first-in, first-out basis, as today’s notice claims. Rather, USCIS would decide applications through various adjudications teams for consistency, based on whether an EB-5 project had an exemplar approval, though current statistics show the Immigrant Investor Program Office isn’t processing much of anything these days.