How could the changes in I-526 adjudication process impact investors from backlogged countries?

The cases will be assigned Priority Dates, however, for those countries with visa availability, those will be prioritized for adjudication.

Under the new change, petitioners born in mainland China, India and Vietnam will still receive a receipt notice when they file their I-526. A priority date will still be assigned as the filing date. However, now that USCIS does not review the cases in a first-in, first-out basis, USCIS will give priority to petitions where visas are immediately available, which will delay the I-526 petitions filed by those who are subject to the visa retrogression even more.

When the case is filed, then the priority date is assigned. Here are our observations about this change: The biggest winner appears to be EB-5 investors not born in mainland China, Vietnam, or India whose pending I-526 application may be approved quicker than before. This is also good news for parents whose children would potentially otherwise "age out" and not be able to immigrate with the rest of the family. Under the Child Status Protection Act (CSPA), the CSPA age of a child is calculated by subtracting the number of days that the Form I-526 was pending with USCIS (from date of receipt to date of approval, including any period of administrative review) from the actual age of the applicant on the date that the visa became available. The time waiting for a priority date to become current is not taken into account. So, longer I-526 processing times can assist those stuck in a visa waiting line from "aging out". For Chinese, Vietnamese and Indian investors stuck in the backlog, despite the potential benefit to their children, this must be gut-wrenching. Not only will there be a separate track for those in backlogged countries to get their I-526s approved, but their investments will need to remain "at risk" for a longer period too, which subjects them to even further risks related to redeployment and material change. This also impacts those investors in troubled projects who cannot benefit from priority date retention protection. The new EB-5 regulations allow, in some circumstances, an EB-5 investor with an approved I-526 to file a new EB-5 petition and retain the earlier priority date of the application. The delay of an I-526 approval means fewer options for investors who invested in mismanaged projects, or subject to fraud or regional center terminations. Based on our firm''s experience, I-526 applications are not always adjudicated on a first-in, first-out basis as today''s notice claims. Rather, USCIS would decide applications through various adjudications teams for consistency, based on whether an EB-5 project had an exemplar approval, though current statistics show the Immigrant Investor Program Office is not processing much of anything these days.

They will still assign priority dates based on the date the application is received by USCIS, but they will not waste resources adjudicating cases that have long waits for the priority date to be current until it gets closer to those dates.

A priority date is automatically assigned on the date USCIS receives an I-526 petition. The change made by USCIS does not impact investors from backlogged countries too much; it is just a way for USCIS to more efficiently and quickly adjudicate I-526 petitions from investors from non-backlogged countries. USCIS will "call-up" the backlogged I-526 petitions when their respective priority dates are closer to being current. This means that a recently-filed I-526 petition from a mainland China-born investor will not be adjudicated for 10-15 years (or until an immigrant visa number is available). This new procedure will allow USCIS to focus on adjudicating I-526 petitions from investors who were born in regions other than mainland China, India or Vietnam, which makes sense because the rest of the countries are not subject to visa number retrogression and can proceed to adjustment of status or immigrant visa processing faster.

They will still get a priority date. But USCIS will work on the cases from countries where the quotas are more current.

The way I read it, this should not affect the receipt of cases, but just which ones get grabbed off the pile for adjudication. So a submitted case will still get a priority date based on when USCIS received it, but they will actually review cases with current or about to be current priority dates first. So Chinese, Indian, Vietnamese cases will just experience longer processing times for the I-526 (and they would be waiting for green card availability even after approval anyway).

It will make it take longer to get a decision on the application. The priority date is the date USCIS receives the application.