Anatomy of a successful EB-5 expedite request
By Nima Korpivaara, Phuong Le and Niral Patel
For all its success, the EB-5 program has long suffered from a common complaint – USCIS processing times are unpredictable, too long, and generally maddening. In fact, one could argue that most of the problems that arise from the EB-5 program stem from ever-increasing processing times. This includes those in a Regional Center who have spent considerable resources to file an exemplar for your new project before going to market, or an investor who has already filed their I-526 and is trying to plan when to move their family to the U.S. Everybody suffers.
The most common plea we receive is, “This is urgent. I have an emergency. Is there anything we can do to speed things up?”
While the US immigration system may not be perfect, it is a democratic one where everybody must wait in the same line or go through the same process once an application is filed. The exception of course is if an individual can establish a compelling reason why their case should be considered sooner than other pending cases.
The request for expedited processing is often mentioned as a hopeful plea or a mythical occurrence, but as we explore below, yes, it’s real.
GENERAL REQUIREMENTS & PROCEDURE OF AN EB-5 EXPEDITE REQUEST
USCIS has long allowed individuals to submit an expedite request for a wide range of immigration applications. This includes EB-5 related petitions such as I-526 petitions for individual investors and I-924 exemplar requests for Regional Centers.
Eligibility Criteria & Procedure:
To be eligible for expedited processing, the request should meet one or more of the criteria listed by USCIS that explains why its urgent for the application or benefit to be approved, including:
- Potential severe financial loss to a company or person unless a benefit is granted;
- Emergencies and urgent humanitarian reasons (such as a personal need to enter the U.S. for critical specialized medical treatment, or to serve a compelling public need such as a doctors and nurses providing healthcare in COVID-19 stricken areas);
- Compelling U.S. government interests (including cases identified as urgent by a federal agency or those that would serve public safety or national security interests);
- To fix a problem that was clearly caused by USCIS error.
Although there are no formal requirements for an expedite request, it’s advisable to include a supporting memo and evidence that explains why the expedite should be granted.
Once a case is filed and a case number has been received, one can request expedited processing through several methods, including calling the USCIS Contact Center or by using the “Ask Emma” function on USCIS’ website. However, in our experience, for EB-5 cases, it is often most effective to make the request directly with the investor program office, which will then typically process the request within 14 days.
Note that while requests are generally processed within 14 days, there is no specific timeline or guarantee of when the underlying I-526 petition will be processed. While most have historically been approved within 6 months or a year (sometimes even earlier), there is no guarantee that cases will be expedited within a specific time. All expedited requests are considered on a case-by-case basis and are discretionary.
BENEFITS & LIMITATIONS OF AN EB-5 EXPEDITE REQUEST
The benefits of an expedite request are obvious: for investors, faster processing time for their I-526 petitions allows them to ultimately begin their lives in the U.S. sooner as conditional permanent residents as well as potentially controlling their investment risk by being eligible for repayment sooner and potentially avoiding redeployment concerns.
It is important to note that a successful expedite request does not guarantee approval of the underlying I-526 petition. It is critical to remember that an expedite request is really a two-part process: (1) approval of the expedite request and (2) approval of the underlying application. Thus, one should still ensure that the underlying application is well-prepared and approvable at the time of filing.
A successful expedite request can be based on an individual investor’s personal circumstances or it can be based on compelling benefits/importance of the project he or she is investing in. For EB-5 stakeholders an expedite request is possible based on a variety of factors, such as whether a particular project will serve a compelling public need or if it’s for an individual’s personal emergencies.
However, while an investor can be granted a successful expedite based on the project they are investing in, there is no “blanket expedite” for a project that would guarantee that all I-526 petitions will be expedited.
PREPARING AN EB-5-RELATED EXPEDITED REQUEST
Neither the eligibility criteria or process for requesting an expedite is overly complicated. What is critical, however, is weaving together a compelling request that helps USCIS understand why a particular case is so important that it should be adjudicated first.
An expedite request requires one to take USCIS’ framework and weave together a compelling narrative that blends together facts that are unique to the client as well as to understand how they fit in with real-world issues and concerns at that given moment. Both these factors continually evolve.
It is critical to do a deep dive into a client’s circumstances to craft a successful expedite including figuring out what critical evidence they or their network can provide. After understanding what urgent criteria they may fall under, counsel may have to work closely with a client’s advisors, professionals and connections to help them understand what is needed.
The analysis for an investor versus a Regional Center may be different. For example, an EB-5 investor who also happens to be a medical doctor that wanted to volunteer their skills in an area hard hit by COVID-19 may have a strong case for an expedite based on his or her own unique circumstances. It’d be helpful to include evidence of the investor’s medical bona fides, an invitation or offer to specifically serve at a local hospital, evidence of spiking COVID-19 infection rates and dearth of healthcare workers. For applicants who have filed an expedite request for loss of employment, it’s important to not only include financial hardships that they have personally incurred, but also financial hardships faced by their company due to their suspension. In one example, a Brazilian investor who had a brilliant son, but who unfortunately was also plagued with a rare muscular disorder that would ransack his body. Traditional medicine wasn’t effective and his health (and future) depended on experimental or novel treatments being developed at Boston University’s medical research team. Supporting letters from his primary care physicians in Brazil and in the U.S. about his rare disease, the novelty of his experimental treatments, and perhaps most importantly – the rapidly degenerating nature of his health, helped lead to a successful expedite.
For projects, it is theoretically possible to expedite based on severe financial loss because funds are tied up in escrow, preventing, a project from moving forward. However, in our experience, that’s not an effective basis (partly because the agency can simply dismiss that as a bad deal the project willingly entered into). It can also be disastrous for marketing purposes. Contrast that with a rural project that bolsters the food supply chain of the region that’s backed by the USDA or a hospital providing healthcare for low-income residents, and you have a win-win for the project and the investor.
At the end of the day, credible, persuasive documentation is key. Supporting letters from politicians can be helpful, but only if they are relevant to the matter at hand. Far better to have case-specific evidence as illustrated in the examples above.
SHOULD I EXPEDITE? CONSIDERATIONS & POTENTIAL PITFALLS
Although a successful expedite request is a powerful and effective option for Regional Centers and investors, it doesn’t mean it’s the correct option for everybody. Consider your circumstances and whether it actually benefits you.
If you’re a Regional Center or Project, a successful expedite request brings obvious marketing and investor benefits. However, consider both the reason for the expedite and whether you are prepared to respond to USCIS on behalf of your investors. On one hand, if the reason for the expedite is you’re raising EB-5 funds to build a new hospital in a rural or economically distressed area that is in severe need of healthcare, then that may be compelling to both USCIS and investors. On the other hand, if the expedite request is based on the project teetering on the verge of failure and bankruptcy because it has no other sources of funding, not so much.
For investors, while most families would obviously benefit from an approved expedite request, it may not always be the right option depending on one’s personal circumstances. One particular situation is if an investor’s priority date isn’t current and they have children as dependents. A “successful” expedite request could potentially be disastrous because if the I-526 petition is approved and a visa isn’t available, any dependent children may potentially age out.
Note that once the expedite request is granted, both the project and investor should have fulfilled or be prepared to fulfill all underlying requirements for EB-5 eligibility. Otherwise, poor planning or lack of awareness may inadvertently expedite a RFE or even a denial. Projects should already be compliant and be otherwise shovel-ready (similar to an I-924 exemplar) to prevent any RFEs for project-related issues. Evidence of financing, permitting, and etc. to show that the project is otherwise ready and able to proceed is critical. For investors, evidence of full EB-5 investment (including documents needed to prove both source and transfer of funds) should have already been submitted.
EXPEDITE REQUESTS & ALTERNATIVE OPTIONS
While a successful request for expedited processing is generally beneficial, also consider that there are alternative options available that may be beneficial to EB-5 stakeholders. For example, for investors who hope to speed up their immigration process, note that the RIA provides alternative, faster processing options. In addition to an expedite request, projects can still confer faster processing benefits if they qualify for one of the specific set-aside visa categories (such as rural).
Of course, post I-526 filing, investors frustrated by continued delays need not be consumed with regret about missing out on an expedite request. A properly prepared writ of mandamus would still likely be the most direct and effective option to compel USCIS to adjudicate petitions that have been stuck in purgatory. This includes compelling review of the underlying expedite request as well. As always, creativity and practicality will always need to be balanced so it’s best to speak with experienced counsel to help guide one through the menu of available options.
 In this article we discuss I-924 exemplars but the same arguments would apply to I-956F filings.
 For more information on specific requirements: https://www.uscis.gov/forms/filing-guidance/how-to-make-an-expedite-request
Niral Patel, a partner at KLD’s New York office, has experience in many aspects of corporate and investment immigration law. For EB-5, he oversees the lifecycle of EB-5– corporate structuring, preparing I-956F applications, preparing I-829 templates, and advising on issues related to redeployment. For non-EB-5, Patel consults companies in maintaining compliance for-E-2 and L-1A programs. He represents both domestic and global corporations with respect to preparing employment-based petitions and adjustment of status applications for their employees in the U.S. Patel also has federal litigation experience. He has successfully represented investors in federal court in mandamus actions for pending immigration cases, including EB-5.
Recognized nationally as an expert in EB-5 law, Nima Korpivaara has advised a multitude of developers, project principals and regional centers on EB-5 program compliance. He primarily works within the immigration practice at KLD LLP, counseling corporate clients and individual EB-5 investors on the EB-5 program’s USCIS requirements and processes.