The I-526 of my wife was filed 26 months ago. She is from India. I am from a country where no EB-5 visa retrogression exists. I am afraid that the delays in the I-526 processing is related to her nationality. Can I change the country of chargeability at this stage to my birth country, or do I have to wait until the I-485 filing stage? I do not think I-526s are processed in a first-come, first-serve basis, although USCIS keeps saying it.
You do not need to designate this on the I-526. When it is approved you notify NVC. Or filing an adjustment, your marriage certificate and birth certificate should be adequate.
It is my opinion that you wait until after your wife's pending I-526 is approved, and you file the adjustment applications.
You may benefit to cross-charge when your wife's I-526 is approved. Cross-chargeability does not occur until the I-526 petition is decided and it does generally not help speed up processing of an I-526 petition.
You are correct that you need to wait for her I-526 to be approved. Once that is done, you could benefit from cross-chargeability. You could go ahead then and file for adjustment of status since your country of birth is experiencing no retrogression at the moment. Based on the current published processing times by USCIS of 29 to 45.5 months, 26 months does not sound that long. If you were to withdraw your wife's application and refile under your name, you would go back to square one, meaning the clock would reset, which at this moment in time does not make much sense. Given your circumstances, your best course of action is to wait for the I-526 your wife filed to be approved and then choose cross-chargeability.
Probably more of an adjustment of status thing. The I-526 doesn't determine green card eligibility.
Nationality of the applicant does not delay EB-5 processing. When the I-526 is approved, you and your spouse will be able to apply cross-chargeability (using your spouse's nationality for immigrant visa quota) so that neither of you would be subject to retrogression delays for the next step in filing for I-485.
You are giving USCIS too much credit. Although processing is not necessarily first-in-first-out, they are not organized enough to group cases by country of chargeability and delay or speed up processing on that basis. In fact, some groups have specifically asked USCIS if they could slow down processing on Chinese cases, given the long backlog, and USCIS said it does not have the capability to do so. There is also no mechanism to change chargeability on the form I-526. 26 months is not terribly delayed. It is a few months longer than I would expect, but then, USCIS just changed its published processing times for I-526s to almost four years.
Your country of nationality would have nothing to do with the processing time of your wife's EB-5 petition on Form I-526. When that petition is approved, you can notify the National Visa Center that based upon your wife's marriage to a citizen of a country that is not subject to EB-5 visa retrogression, you and your wife can be scheduled for your immigrant visa interview without being subject to the Indian quota.
You may try to amend your I-526, but I do not think it will help!
While you may be able to change the country, you may have to withdraw and refile the I-526. In the process you will designate yourself as the primary applicant. Prior to taking any steps, consult an EB-5 attorney to review your case to seek if you can gain any appreciable time or not. Otherwise, it may be advisable not to change the primary applicant considering you have been waiting for over 26 months.
You may interfile this information with your birth certificate and marriage certificate, then ask for a change in country of chargeability.
You can choose cross-chargeability at the NVC/AOS stage.
If you were born in a non-backlogged country, it may actually be faster for you to simply withdraw and refile with you as the primary investor/petitioner (your wife would be the dependent).
Unfortunately, USCIS does not allow you to change the principal applicant on Form I-526 after filing. You would need to withdraw the application and file again under your name.
They say they process them on a first-come, first-served basis, but who knows? You can write them, providing your case number, and tell them you will be using "alternate chargability" to your country.
The country of chargeability does not impact the I-526 processing time.
The country of birth of the applicant does not impact the processing time of the I-526. You can cross-charge to your country of birth when applying for adjustment of status or consular processing.
You could notify USCIS that you plan to file for adjustment based on cross-chargeability. If you are eligible for adjustment now, because the visa is available now, then you could file now.
Your chargeability is based on the country in which you were born. Therefore, if you are the main applicant there should be no problem. If, on the other hand, your wife was the main applicant, the change would require you to file a new application. With your attorney's help and the cooperation of the regional center, this could be done.
DISCLAIMER: the information found on this website is intended to be general information; it is not legal or financial advice. Specific legal or financial advice can only be given by a licensed professional with full knowledge of all the facts and circumstances of your particular situation. You should seek consultation with legal, immigration, and financial experts prior to participating in the EB-5 program. Posting a question on this website does not create an attorney-client relationship. All questions you post will be available to the public: do not include confidential information in your question.