By Mona Shah, Esq. and Rebecca S. Singh, Esq.
Filling a gap widened by U.S. Citizenship and Immigration Services (“USCIS”) and its continual obfuscation on delivering actionable guidance, the American Immigrant Investor Alliance (“AIIA”) is counting on its new online calculator to provide constituents with accurate predictions of their EB-5 visa wait times. And while there is no telling what kind of impact the still-in-development tool will have, the organization—a nonprofit that advocates for EB-5 investors’ interests—has imbued it with content pointing to its credibility: numbers crunched by no less than the agency itself and accrued via AIIA’s Freedom of Information Act (“FOIA”) litigation.
The calculator, geared to EB-5 investors whose involvement in program projects preceded the EB-5 Reform and Integrity Act (“RIA”), comes at an important moment. Critics of USCIS’ lackluster guidance on visa wait times have noted that petitioners need such information to gauge the likelihood of being approved, while regional centers and other project stakeholders use such data for planning. With the agency providing little to no clarity on this matter, the industry is exploring ways to fill the gap.
“AIIA recognizes the need for something like this because investors who invest so much into this country deserve to have an organization looking out for their interests and informing them of how the biggest decision of their lives may pan out,” —Khanna
“AIIA recognizes the need for something like this because investors who invest so much into this country deserve to have an organization looking out for their interests and informing them of how the biggest decision of their lives may pan out,” stated Ishaan Khanna, President of Washington, D.C.-based AIIA.
Plans to assist in this quest also could bear fruit for post-RIA investors. The “data-driven” calculator ultimately may be built out for them “depending on what data we are able to obtain in the future,” explained Khanna. He clarified that the organization will begin with pre-RIA investors because “that’s the best data we currently have.”
The amount being used, however, is hardly wanting. Programmed with content that also includes statistics from different sources—including other government agencies’ annual reports and performance data, the recent U.S. Government Accountability Office (“GAO”) report, and figures culled from FOIA requests from various individuals/organizations—the tool will appear on AIIA’s website and will be announced on its social media channels when it is ready, according to Khanna. That likely will take several months for the final version; now in the “alpha stage of development,” the calculator does not carry an ETA on completion of the beta iteration, he revealed.
For the industry, it may not come soon enough. According to the GAO report, USCIS has been sorely lacking when it comes to collecting data on EB-5, particularly vis-à-vis issues such as fraud and backlogs. Indeed, these problems could impact interest in the EB-5 program, which already has been affected by factors such as the relatively small annual cap for EB-5 visas (10,000 total), and the 7% per-country cap. These factors, per the report, have elicited “longer wait times for countries that have reached and exceeded the per country limit, such as China, India, and Vietnam, particularly in visa categories such as EB-5 which have been oversubscribed in recent years.”
The report does offer potential solutions that could help make the process more efficient and impactful. Observing that the RIA “gives USCIS new denial and termination authorities to address fraud and national security concerns,” the report points out that “USCIS does not collect data on the reasons for (1) denying EB-5 petitions and applications, and (2) terminating Regional Centers.” As such, the GAO recommends a viable option: “Developing a process to collect and assess these reasons would provide USCIS with valuable insight into program risks.“
If USCIS adopts this suggestion, petitioners might have more to go on; with full transparency, any industry reliance on outside tools to provide actionable data would be rendered moot. That scenario, however, is as unlikely as a USCIS adjudicator approving an EB-5 application within 24 hours of its submission. Meanwhile, sector advocates, cognizant of constituents’ temporal constraints, are looking to take up the mantle with content elucidating immigrant investors left in the dark by the agency.
Equipped with a simple interface, the visa-wait-time calculator could help illuminate the way. See below for a snapshot of the tool (some elements have been redacted to preserve data integrity):
Another potential draw is the tool’s bespoke capability. The alpha version will enable users to customize variables after entering in their countries of chargeability and priority dates. Per Khanna, the variables are: the estimated pending I-526 approval rate, defined as the percentage of all unadjudicated petitions that receive an approval and are not withdrawn or denied; the estimated visa applicant survival rate, or the percentage of I-526 petitions with an approved I-526 that will proceed to the visa stage and be granted a visa, rather than withdraw from the process or be denied; and the estimated average visas per petition, defined as the average number of derivative applicants/family members applying with a principal applicant on a singular petition.
Further variables “may or may not be added in future versions.” —Khanna
Khanna added that further variables “may or may not be added in future versions.” The variables could potentially be channeled into new fields in the calculator, which may lead to greater specificity and, consequently, more depth. In an industry where explanations of rules and procedures are rarely sufficient (e.g., USCIS’s most recent stakeholder engagement), and direct, open communication with the agency is nearly nil, the possibility of bridging this gap with ample, tangible data could be attractive to investors seeking up-to-date, accurate information about their prospects for approval. With the windows of EB-5 opportunity open at a mere 7% country cap, petitioners need to know what chances they have of gaining permanent residency in the United States through the program.
Given these essentials, the new calculator could clear up much about visa wait times for EB-5 investors—and quickly, too. Because unlike the delays elicited by USCIS’s adjudications of their petitions, the wait for this tool should not take a decade or more to meet approval.[i]
Simon Butler contributed to this article.
[i]For more content on this and other subjects, please refer to Mona Shah & Associates Global’s podcast on AIIA here or AIIA’s forthcoming webinar on May 15 at 11:00 a.m. EST.