Expedite approval, an option for EB-5 investors to consider
By Anayat Durrani
The EB-5 investment program has been a reliable way to get U.S. permanent resident status for investors and their immediate family members. While the process may take time, there is a faster option. EB-5 investments considered to be in the national interest and other criteria can get expedited approval by the U.S. Citizenship and Immigration Services. Expedited approval is the fastest EB-5 processing an investor can obtain.
“An expedite has the potential to save investors years off the adjudication time of their I-526 petitions. When an investor receives an expedite, they literally are supposed to go to the front of the line,” says Matt Gordon, Chief Executive Officer, E3iG.
Processing times are fast with expedited approval when projects are in the national interest.
“The impact is huge. The granting of expedited processing means that the investor’s I-526 petition is placed at the front of the queue, to be adjudicated and approved before any non-expedited petitions,” says Stephen Smith, president of EB5CoastToCoast.com.
Benefit of expedited approval for EB-5 investors
Backlog and lengthy processing times can be discouraging to new investors. But expedite approvals can typically be quick without the usual delays.
“This means having to wait only a matter of months instead of the many years it normally takes USCIS to adjudicate non-expedited petitions,” says Smith. “This is a tremendously attractive feature to most EB-5 investors.”
Expedited EB-5 investment projects can be difficult to come by though. To qualify, a project must meet certain criteria, such as being of immediate interest to the U.S. government. These types of projects include everything from addiction treatment centers to address the rising opioid crisis to new housing developments to provide homes for displaced veterans.
“Normally USCIS adjudicates petitions in the order received, so long as the petitioner’s visa is coming from a class that is current,” says Gordon. “An expedite will not cure a flaw in a petition and will not accelerate the time it takes to evaluate, once USCIS is working on it. Complex petitions can still take time, but all things being equal the expedite will save a very significant amount of time.”
How can a project qualify for EB-5 faster processing?
The USCIS says they consider expedite requests on a case-by-case basis, can ask for additional documentation to support the request and have the sole discretion to determine whether they will accommodate the request or not.
Per the USCIS, the agency considers an expedite request if it meets any of the following criteria: severe financial loss to a company or person; emergencies and urgent humanitarian reasons; nonprofit organization whose request is in furtherance of the cultural or social interests of the United States; or meets U.S. government interests.
According to the USCIS, an example of severe financial loss is if a medical office suffers severe financial loss due to a gap in a physician’s employment authorization that requires the medical practice to lay off their medical assistants. Another example, under the criteria of an emergency reason, is if there was an immediate need to expedite employment authorization for healthcare workers in a time of a national emergency, like the COVID-19 pandemic. However, not all circumstances under any of the categories can result in expedited processing, as it varies.
“It is extremely difficult to meet any of the criteria and in fact the vast majority of expedite requests are denied,” says Smith.
Smith operates a regional center that is monitoring a project that sought expedite approval. The project is a hospital that is adding a behavioral health unit to treat patients with opioid addiction. While the project does not yet have project approval, some investors of the project were granted expedite approval. Smith says project approval did not exist prior to the passage of the EB-5 Reform and Integrity Act (RIA) in March 2022 and that they will be applying for that and request expedited processing.
“The pre-RIA investors each individually applied for, and were granted, expedited processing, as individual investors,” says Smith.
He says in general, each of the individual requests for expedited processing were granted only a couple of weeks after the request was filed. The investors were granted expedited processing due to the fact that the national addiction epidemic is a humanitarian crisis of national interest, he says.
“Over 100,000 people die from drug overdose in the U.S. every year, that’s over 273 people every single day,” says Smith.
He says he is not aware of any other EB-5 projects that have achieved the benefit of expedited processing for their investors other than those that address the national addiction epidemic. Despite this, investors may want to look into this as a possible option in the future.
“The process for getting it is filing a request for expedited processing soon after the investor’s petition has been filed with USCIS,” says Smith.