More than 4,400 EB-5 investors who filed their B-5 application before March 2022 are pending processing at the U.S. Citizenship and Immigration Services (USCIS), according to data released from a Freedom of Information Act request.
The released information, requested by the American Immigrant Investor Alliance (AIIA), shows the number of petitions submitted before the implementation of the EB-5 Reform and Integrity Act of 2022 (RIA) that have yet to be reviewed by USCIS as of July 2024.
Securing the I-526 approval is the initial step in the EB-5 visa application process.
Broken down by country in the categories of China, India, and Rest of World (ROW), the data shows that Mainland Chinese investors have the largest number of pending pre-RIA applications: 2,974. Investors from the rest of the world follows with 1,049, while Indian applications total 473.
According to AIIA, “our rough analysis tells us that there is a high likelihood of there not being enough visas to cover all of the pre-RIA investors from China by 2030. That said, India’s pre-RIA backlog should mostly be resolved by 2030 even under the worst case scenario.”
Delays in pre-RIA EB-5 petitions must be dealt with, attorneys say
AIIA noted that the released pending petitions only represent a part of the EB-5 backlog and that many petitioners who had their I-526 filed are still waiting for their green card or immigrant visa to be issued.
There is a consensus among many EB-5 attorneys that these delays and processing issues faced by pre-RIA EB-5 investors are a problem that must be solved, along with improvements in the adjudication process and visa allocation procedures. Some attorneys expressed concern for the almost decade-old delay in some petitions, while others cautioned against how USCIS compiles data on EB-5 visa applications.
Tammy Fox-Isicoff from Rifkin & Fox-Isicoff, P.A., pointed out the delays’ negative impact on the program.
“Something is really wrong with an agency when it takes the agency 10 years to adjudicate a petition, where the priority date is current, and where the investor has invested a substantial sum of money,” he said. “It is tragic that the EB-5’s 526 adjudication process is conducted by an agency (USCIS) with little competence in business and financial nuances. It does not take USCIS years to complete other employment-based adjudications. USCIS falsely claims that it has a scheme in place for I-526 adjudications when defending against mandamus actions. Last year, we litigated a FOIA request seeking information on how many I-924s were pending when the EB-5 program sunset. While litigating this FOIA, USCIS agreed to return all pending I-924 filing fees.”
Solutions to the growing EB-5 processing times
Fox-Isicoff added that the EB-5 adjudications must be removed from USCIS and given to a more competent agency.
“Interestingly, USCIS was supposed to conduct a fee study for how much it should charge to get processing times down. It never conducted this fee study, but raised fees astronomically. It is insulting to pre-RIA investors that their petitions remain pending, while post-RIA petitions are quickly adjudicated. It gives the program a black eye.”
Edward Beshara from Beshara, PA, notes that there’s still a solution for those with pre-RIA EB-5 petitions who are waiting for USCIS to review their cases.
“If the foreign national investor (may include the spouse and children who were under 21 when the I-526 petition was filed), is currently in the U.S. in legal non-immigrant status (e.g. visitor, student, E-2/E-1 or other temporary status), and if the priority date of the filing of the I-526 petition is current [date when form was sent to the USCIS], then the investor and their family members can file their applications for adjusting status immediately, together with their applications for employment authorization and advance parole (permission to travel). In other words, the I-526 petition does not have to be approved before the investor and family members can apply for adjustment in the U.S. and obtain work authorization and travel permission.”
The priority date is the calendar day when an EB-5 application is properly filed with the USCIS or through a U.S. embassy or consulate; establishes an investor’s place in the queue to receive an immigrant visa, and guides EB-5 attorneys in assessing their clients’ next steps and eligibility.
The importance of accurate EB-5 data
Bernard Wolfsdorf from W.R. Immigration cautions against how USCIS and the Department of State count the information about the EB-5 applications.
“While it’s always helpful to collect data, I worry about the integrity of some data. USCIS processes petitions and adjustment of status in the U.S., and [DOS] regulates processing abroad via U.S. consulates/embassies. For example, many petitions are sent to the State Department’s National Visa Center [NCV] for consular processing abroad, but in fact some of these actually file for adjustment of status in the U.S. and this results in an artificially inflated number of “so-called pending cases”. In fact, what we have here is a double count. Also many of the 2016/2017 cases listed as pending have found another path to a green card, and/or aged out, and some have dropped out.”
Wolfsdorf recalls after his law firm sued the DOS over visa wastage in August 2022, the latter took steps to meet the full quota of EB-5 visas issued in 2023.
“A total of 9,817 EB-5 visas was issued in FY2023, of which 6,262 went to Chinese applicants,” he said.
Based on the large number of unused RIA set-aside visas rolling into the pre-RIA waiting line, Wolfsdorf concludes he is “optimistic that backlogged Chinese from late 2016 and 2017 would start seeing the line moving much faster.”
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