By Marta Lillo
The U.S. Citizenship and Immigration Services (USCIS) recently made a significant update to its visa availability approach to streamline the processing of Form I-526, impacting the EB-5 program.
The update explicitly affects EB-5 investors’ forms filed on or before Nov. 30, 2019, that have an available (or soon-to-be-available) visa and either a reviewed project or a “non-pooled” (single investor) standalone project. EB-5 applicants submitted these petitions before the EB-5 program’s modernization in November 2019, and they currently fall within the so-called “third queue” in the USCIS processing workflows.
From July 18, 2023, the USCIS Immigrant Investor Program Office (IPO) will group these third queue filed forms first by new commercial enterprises (NCEs) and then assign them to adjudication officers using a first-in, first-out (FIFO) methodology based on the earliest filed petition date for each NCE.
Although the new methodology seeks to improve the overall EB-5 program, its precise impact on reducing the I-526 backlog and expediting adjudication timelines remains to be seen.
Before this update, the IPO managed these petitions using the traditional FIFO approach, organizing them according to their receipt date, with the oldest adjudicated first.
Immigration attorney and managing partner at WR Immigration, Bernard Wolfsdorf, says the decision “is a giant leap forward for the EB-5 program. The single biggest problem with EB-5 processing is the delay in adjudicating petitions because it causes more investor frustration than any other issue.”
Why is the USCIS changing how it processes I-526 forms?
Adjudication officers used the chronological order for years when managing I-526 forms filed before Nov. 30, 2019, grouped within the third queue in the processing workflow.
This system often led adjudicators to review the same documents multiple times and to bypass factors such as project similarities or grouping based on NCEs, leading to inefficiencies and causing adjudication delays.
The USCIS trusts the transition to a more dynamic process – with the NCE methodology complementing the existing FIFO approach – will reduce redundancy, streamline productivity, and increase processing speed.
“Because adjudicators can process Form I-526 petitions more efficiently when working multiple petitions associated with the same NCE given the overlap in project documents and issues presented,” the agency said.
Immigration lawyer and EB-5 specialist Dennis Tristani adds that the USCIS’ rationale “will allow for increased processing efficiency if one adjudicator is reviewing I-526 petitions for one project (NCE) at a time and is only focusing on the source of funds issues since the project documents have already been reviewed.”
Meanwhile, Wolfsdorf adds that processing cases by project “allows adjudicating officers to become familiar with the case and with the required I-956K approval, this could increase efficiencies by 50% or more.”
Grouping by NCE and then by reception date “should make the Regional Center cases process more quickly for sure,” says Charles Kuck, immigration attorney and managing partner of Kuck Baxter Immigration. “Not having eight different adjudicators handling cases from the same regional center should make adjudications faster.”
Update’s effect on processing times and the overall EB-5 applications backlog
The change represents a milestone in USCIS’ efforts to improve the EB-5 Program after implementing the Reform and Integrity Act (RIA) at times when applicants and immigration experts are eagerly calling for a more efficient and expedited application and adjudication process.
“This is the best news I have heard all year, and it comes at precisely the right time because interest in the new EB-5 program is skyrocketing,” Wolfsdorf says.
However, its influence on the agency’s I-526 forms backlog, overall delays in the adjudication process, and the time the update will take to deliver results are yet to be determined.
“There’s a huge backlog of unadjudicated I-526 cases pre-RIA and a growing number of post-RIA I-526E filings that USCIS will have to contend with (…) The hope is that this change will help focus adjudication on pre-RIA petitions and reduce inefficiencies in case review by assigning USCIS officers I-526 petitions from one NCE at a time,” Tristani says.
On one hand, Kuck says that the real problem is form management. “How in a processing center of more than 200 employees that only handles EB-5 cases, do they have only 38 adjudicators? That is the bottleneck!”
On the other, Wolfsdorf says the new system would help tackle the limited number of officers reviewing I-526 forms. “This is the most critical aspect,” he insists.
As to when the update’s effects start showing, and given IPO’s slow processing times, immigration experts digress. Tristani would consider it “a victory if we started to see I-526 petitions approved at a faster clip this calendar year (in the next five-six months).” While Wolfsdorf expects “almost immediate results,” Kuck says he doesn’t expect to see a sudden increase in adjudications. “This is going to be akin to rearranging the deck chairs on the Titanic. Real results will only come with more adjudicators and less management bureaucracy.”
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