One of the biggest drawbacks for parties interested in the EB-5 program is the current processing times for I-526 petitions. Currently, United States Citizenship and Immigration Services (“USCIS”) California Service Center (“CSC”) is processing I-526 petitions from March 2012. Based on current processing times, it will take CSC approximately 18 months to process an I-526 petition. This will create a number of issues for individuals and parties involved with the EB-5 Program.
First, it creates an arbitrary time frame for when jobs must be created under the EB-5 program. Because jobs must be created within two and a half years from the date of approval of the I-526 petition, the current processing of I-526 petitions in a seemingly random and irregular order at a slow pace has left I-526 petitioners doubting whether they will be able to have the requisite number of jobs created in over three years. This will especially affect the direct approach EB-5 projects, whereby jobs must be physically documented, rather than through the indirect approach which uses economic methodologies.
Second, EB-5 projects which have participated in the EB-5 process could face severe delays or other hardships because oftentimes an I-526 Petitioner’s investment is held in escrow until approval. In response, an emerging trend has been for escrow release to occur upon approval of a minimum number of I-526 petitions associated with a project. However, many of the EB-5 projects and I-526 petitions which are still being adjudicated were conceived and initially filed over 16 months ago. Many of these EB-5 projects and I-526 petitions do not feature an early escrow release.
Third, I-526 petitioners are often stuck in their home country for an additional period because once an I-526 petition is approved they must schedule an appointment at their local U.S. consulate and receive an immigrant visa. However, some individuals have experienced significant delays while waiting for their visas to be approved at the consulate level. The effect of consulate delays has led some I-526 petitioners to be unable to enter the United States until over 20 months have passed from the date of filing their I-526 petition.
Lastly, it has been over five months since USCIS realigned the CSC’s EB-5 group to report to the Washington, D.C. program office and there has only been retrogression in I-526 petition processing times. It begs the question whether USCIS has put a hold on processing some I-526 petitions until USCIS transitions to processing I-526 petitions from Washington D.C. EB-5 practitioners must continue to watch processing times closely because of the adverse effect these processing times are currently having on EB-5 projects and I-526 Petitions.