By Marta Lillo
The latest quarterly report for fiscal year 2023 (FY 2023) indicates a significant rise in the number of Form I-526s processed during the first half of the year, particularly approvals, suggesting that the U.S. Citizenship and Immigration Services (USCIS) is increasing the pace of reviewing new and pending applications.
However, increasing form denials in the same period show the government immigration agency has increased scrutiny when reviewing petitions, underscoring the need for thorough EB-5 application preparation.
Official figures show that the reception of forms I-526 (for applications filed by singular investors before and after the change in regulation in 2022) and I-526E (filed by investors through a regional center) notably expanded between the first and the third quarters of FY 2023.
Also, the numbers indicate an uptick in EB-5 application processing (approvals and denials) as the USCIS reviewed 2,272 between the first and third quarters, surpassing the 1,415 forms processed in FY 2022. However, the figure is still far from the average of 3,000 forms the agency processed between fiscal years 2020 and 2021.
Irina Rostova, EB-5 immigration attorney and managing director at Dalmore Group, says the increased activity on I-526 adjudication is noticeable.
“Although I am seeing long and demanding RFEs [Requests for Evidence], my clients’ cases continue to be approved, and I am not seeing a higher rate of denials internally,” Rostova states. “The internal data I am referring to are cases for clients whom I used to represent as an attorney and cases of other immigration attorneys that I have been training/consulting.”
More EB-5 applications received and processed show USCIS is moving faster
Between April and June (third quarter), the joint number of received I-526 and I-526E applications by the USCIS totaled 699, the highest compared with 535 in the second quarter (January-March) and 556 in the first quarter (October-December 2022). It is also the highest quarterly figure since the first quarter of FY 2020 when received applications totaled 4,264.
Therefore, the USCIS received 1,790 of these forms since the beginning of the fiscal year 2023, another milestone since 2020, showing foreign investor interest in the EB-5 program is picking up.
In the first nine months of FY2023, approved forms total 1,316, the majority filed before the Reform and Integrity Act 2022 (RIA), which shows the USCIS is catching up to the backlog of these applications.
However, 12,700 petitions are still pending, a high number – lower than the 13,232 pending applications at the end of the first quarter.
As for denied forms of either category, the number reached 956 between October and June, almost tripling compared with the 338 denials recorded in the same period last year. It also marks the highest level of refusals since 2019 (1,014).
Rostova says that she has been observing the agency is requesting more RFEs and issuing Notices of Intent to Deny (NOIDs), “but as long as USCIS received a response with substantial documents, they seem to be satisfied and approve the cases.”
The attorney also suggests that EB-5 investors should work with experienced law firms to prepare quality RFE responses with direct and indirect evidence.
As for the reasons behind the increase in filings and processing, Lynne Feldman, EB-5 immigration attorney at Feldman Feldman & Associates, states it could relate to the requirement that all existing Regional Centers (RCs) re-apply after the law changed in 2022 with the EB-5 Reform and Integrity Act.
“We are hearing of quite a few projects, which have been failing due to COVID, poor management, and who knows what else – some investors are getting their money back and in other cases, an increase in I-829 denials where the project failed and hasn’t created the requisite jobs creating a nightmare for the [EB-5] investors who have been conditional residents for many years, established a life here and now need to start all over with a new plan,” Feldman explains.
USCIS processing of Form I-485 down
Moreover, USCIS decreased its Form I-485 processing from more than 50,000 in Q1FY23 to around 35,000 in the third quarter.
During Q3, the agency handled 474 I-829 petitions for the EB-5 visa, varying slightly from previous quarters (480 and 447, respectively). Approval of this form is the final step in the EB-5 process, as it removes the conditional residency restriction for EB-5 immigrant investors and their dependents, allowing them to reside in the U.S. permanently.
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