By Anayat Durrani
The pandemic hasn’t been easy on EB-5 applicants. Long processing times, delays and backlogs. And when the regional center program wasn’t reauthorized, it left many investors hanging in the balance. But even with no EB-5 regional center applications to process, the Investor Program Office at USCIS has been experiencing a slowdown and lower productivity with I-829s.
“The reason why is not clear; what is clear, however, is that the IPO is not processing I-829s or Direct-I-526s anywhere near its capacity,” says Belma Demirovic Chinchoy, Esq., founding attorney of Immigration General Counsel, Iyer Demirovic Chinchoy LLP. “USCIS has clearly shifted resources from the processing of EB-5 petitions, but to what, that remains a mystery.”
Some 12,798 I-526 applications were listed as pending and 727 were processed by the USCIS as of June 30, 2021. There is also a notable decrease in I-829 processing. The IPO had 11,160 pending I-829 petitions as of June 30, 2021, according to USCIS data. The completed petitions numbered 448 in the third quarter of 2021. The current I-829 estimated time range starts at 35.5 months.
What does this adjudication speed mean for EB-5 investors?
Suzanne Lazicki, an EB-5 business plan writer and owner of Lucid Professional Writing, LLC, said in her blog, that if IPO carries on processing I-829 at a rate of about 150 per month, “then it will take 11,160/150=75 months to clear the current pending inventory. In other words, the average I-829 filed on June 30, 2021 can expect a six-year processing time based on current conditions, unless IPO productivity improves from its current level.”
Professionals say that I-829 needs an intervention and one that occurs soon.
“One of the most effective strategies in pushing back against this is to sue in federal courts,” says Demirovic. “Petitioners pay thousands of dollars for USCIS to process their petitions within a reasonable time period – per Congress, 90 days for I-829s – and the agency takes at least 10 times longer to do so. These are unjust and unreasonable delays.”
For their part, the USCIS released an alert on Sept 3, stating that beginning Sept. 4, the USCIS will extend the time that receipt notices can be used to indicate evidence of status from 18 months to 24 months for petitioners who file Form I-751 or Form I-829. “We are making the change from 18 to 24 months to accommodate current processing times for Form I-751 and Form I-829, which have increased over the past year,” per the alert. However, processing times currently remain at 35.5 months.
USCIS did not get back to EB5 Investors in time for publishing despite repeated requests.