The EB-5 visa availability approach, the new I-526 petition processing change announced earlier this year by USCIS, has now gone into effect. Here’s what that means for EB-5 investors from top countries.
First, what is the visa availability approach?
It’s a change to how I-526 petitions will be prioritized for adjudication. Prior to the new visa availability approach, I-526 petitions were adjudicated on a first-in, first-out approach. This means that I-526 petitions used to be processed in the order that they were received. Now, under the new visa availability approach, they are processed based on visa availability. EB-5 investors from countries where visas are immediately or soon to be available will have their pending I-526 petitions prioritized for adjudication. This means that EB-5 investors from underrepresented countries will benefit from this new processing change.
What country is adversely affected by the processing change?
For many years, the heavy majority of EB-5 visa demand came from Mainland China. Since I-526 petitions were being processed in the order received, most of the I-526 petitions being processed came from Chinese investors. Unfortunately, Chinese demand for EB-5 visas far exceeded supply, and the Immigrant Investor Program Office, using the first-in, first-out adjudication process, spent time and resources processing I-526 petitions for Chinese investors despite limited supply of available visas. Under the visa availability approach, these petitions will no longer be prioritized until visas become available again.
Which countries benefit from the visa availability approach?
According to the EB-5 stakeholder meeting on March 13, 2020, EB-5 investors from Mainland China are the only ones affected by the processing change. Many speculated that India and Vietnam may also be affected, but it’s not the case for the foreseeable future. In fact, according to Charles Oppenheim, of the U.S. Department of State, Chief of the Visa Control and Reporting Division, predicted that India, despite currently having a visa backlog, will have a current final action date on the visa bulletin by this summer.
EB-5 investors who were born in countries where visas are immediately available will see their I-526 petitions prioritized for processing over investors who were born in oversubscribed countries (currently only Mainland China), regardless of when they filed their petitions.
Can I-526 petitions still be expedited?
USCIS will continue to review expedite requests, and if approved, the EB-5 investor’s petition will be taken out of order for processing.
What key information does the State Department Visa Bulletin provide for EB-5 investors?
There are two important charts in the visa bulletin, here’s what they mean:
Chart A: Final Action Dates
This chart indicates when an EB-5 investor may schedule an interview and be issued conditional permanent residence. There are currently three countries facing visa backlogs: Mainland China, India and Vietnam. EB-5 investors from these three countries must compare their priority dates to the dates listed in the chart. If their priority date is on or before the date listed in the chart, they may proceed in the process and schedule an interview. All other countries remain current.
Chart B: Dates for Filing
This chart is one factor USCIS will use to determine which I-526 petitions will be prioritized for adjudication under the new visa availability approach. All countries for April 2020 are current except for Mainland China. The dates for filing for Mainland China EB-5 investors is December 15, 2015. Applicants with a priority date earlier than the date listed in the chart may prepare and submit their visa application to the National Visa Center.
What is the current processing time for the I-526 petition at the Immigrant Investor Program Office?
The current processing time estimated range is 31 months – 50.5 months.