Expected processing times and Outlook: What to expect in the coming months
As the COVID-19 pandemic-induced processing slump at USCIS ends, EB-5 applicants can expect to see a pick-up in processing times but will have to wait several months before things pick up at a noticeable level, available data indicates.
Estimating processing times in the EB-5 program is a complex endeavour. Data provided on the USCIS website is flawed and fails to consider the intricacies of backlogs caused by the COVID-19 pandemic, retrogression in a number of countries, as well as trends pointing to an ever-increasing processing capacity as the agency mobilizes additional resources to reduce its inventory.
Nevertheless, our team has attempted to estimate and project what processing times are going to look like in the near future for I-526 petitions, and has done so by analyzing available public data issued by USCIS and otherwise published in the public domain.
The analysis below should therefore be taken for what it is: a series of “educated guesses” based on the available data and on what we know about how petitions are processed. They do not take into account unpredictable events (such as a global pandemic) and are to be used accordingly.
Here are the estimated processing times for an I-526 petition filed in the first quarter of 2023, according to current perceived trends:
- Rural areas (all countries): 6-12 months
- Reserved categories, except rural areas (all countries): 1-4 years
- Unreserved category (except China and India): 3.5-4 years
- Unreserved category (India): 6.5-7 years
In practice, this means that new applicants should aim to file their petitions in rural designated projects to benefit from priority processing for as long as this priority yields faster turnaround. In their case, we project a processing time of 6 to 12 months, keeping in mind that Congress has demanded that USCIS aim for a processing time of 6 months or less in this subcategory.
Existing applicants, on the other end, can expect light at the end of the tunnel, if they were not born in China or India, which are currently experiencing retrogression. Our data shows that as of September 30, 2022, over 70% of petitions filed in Q1 of fiscal year 2019 (October 1, 2018, to December 31, 2018) had had a status update of some kind, compared with less than 30% of petitions filed in Q2 of fiscal year 2019. Based upon this data and the knowledge that new adjudicators were hired at the IPO (though the actual number is unknown) and that it takes roughly 8 months to train these new hires, our realistic processing time projections currently conclude to a 3.5 to 4 years for petitions filed recently and those filed in 2023. We expect processing times to start going down more significantly once the new adjudicators are fully trained.
Already in the US? Consider Concurrent Filing
For applicants who are already in the US, the EB-5 Reform and Integrity Act of 2022 has opened up the possibility for I-526 petitioners to file for adjustment of status (“AOS”) from within the US and after having filed their I-526, in a process called concurrent filing. This procedure is only available for applicants born in countries that are not experiencing retrogression (i.e. not from China and India at the time of publication).
In this scenario, eligible applicants already in the US may submit an I-485 form to USCIS along with other required documentation to bypass consular processing, which would otherwise be the process for individual who is outside of the United States.
After a period of roughly 4 to 8 months, the applicant going through AOS will receive a travel document, also known as Advance Parole, which would also count as an EAD (Employment Authorization Document). The EAD would allow its holder to legally work within the country, while Advance Parole would allow the individual to travel abroad while their adjustment of status application is pending. Without such a document, the individual would be considered to have abandoned their application. While these two documents may be distinct, they are combined in a single document when applied for at the same time.
For this reason, applicants going through AOS may not travel outside the US until they receive their travel document from USCIS and must therefore plan to wait inside the US for the necessary amount of time to benefit from this new option in EB-5.
Before considering AOS, it is however critical to bear in mind that applicants cannot enter the United States on a status that does not normally allow adjustment of status (e.g. B-1/B-2 visitors) with the intent of engaging in this process, since they would risk facing serious sanctions for misrepresentation to the US immigration authorities, including inadmissibility. Caution is therefore needed, and this is where the 90-day rule also becomes important.
What is the 90-day rule?
Under this rule, immigration authorities will presume that a nonimmigrant visa holder (e.g. such as a B-1/B-2 visitor) has made a willful misrepresentation at admission or application for a nonimmigrant visa when that same nonimmigrant enters the U.S. and within 90 days engages in conduct that is not allowed with their nonimmigrant status, including AOS. Put simply, US authorities will assume that someone who applies for AOS within 90 days or less after entering the US as a visitor or under another nonimmigrant status will have misrepresented their temporary intent at the border, and could therefore be found inadmissible to the US for misrepresentation. Caution is therefore recommended before considering AOS.
Learn More
What is concurrent filing?
Concurrent filing refers to the process of submitting both an I-485 application for adjustment of status. In the context of EB-5, this allows the individual to apply for a green card and work authorization document/travel document while their I-526 petition is being processed. The individual must be physically present in the United States and be eligible for adjustment of status based on their current immigration status.
What is adjustment of status and how does it compare to consular processing?
Adjustment of status and consular processing are two different ways for an individual to apply for an immigrant visa or green card under U.S. immigration law.
Adjustment of status is a process by which an individual who is already in the United States can apply to change their immigration status from a nonimmigrant status (such as a tourist or student visa) to an immigrant status (such as a permanent resident or green card holder). This process is typically done by submitting an I-485 form to U.S. Citizenship and Immigration Services (USCIS) along with other required documentation. The individual must be physically present in the United States and must be eligible for the new immigration status they are seeking.
Consular processing, on the other hand, is a process by which an individual who is outside of the United States applies for an immigrant visa or green card through a U.S. consulate or embassy. Under the EB-5 Program, once the I-526 petition is approved, the individual can then apply for an interview at a U.S. consulate or embassy in their home country. If the individual is approved for the immigrant visa or green card, they will be able to enter the United States as a permanent resident.
In summary, adjustment of status allows an individual who is already in the United States to change their immigration status without leaving the country, while consular processing is for individual who is outside of the United States.
What is an EAD?
In the context of US immigration, an EAD (Employment Authorization Document) is a document issued by the United States Citizenship and Immigration Services (USCIS) that allows an individual who is not a citizen or permanent resident of the United States to legally work within the country. When applied at the same time as a travel document (see below), the two documents would be combined in a single card.
What is a travel document under adjustment of status?
A travel document, in the context of adjustment of status under US immigration law, is a document that allows an individual who is in the process of adjusting their immigration status to temporarily leave the United States and return without jeopardizing their application. A travel document, also known as Advance Parole, is usually issued by the United States Citizenship and Immigration Services (USCIS) to individuals who have applied for adjustment of status. It allows the individual to travel abroad while their adjustment of status application is pending. Without it, the individual would be considered to have abandoned their application.
The time it takes to be issued a travel document can vary depending on a number of factors, but applicants should generally expect a period of 4 to 6 months. When applied at the same time as an EAD (see above), the two documents would be combined in a single card.
Care to learn more about processing times? You can read our in-depth analysis below.
In-depth analysis
Background
The EB-5 immigrant visa category was created in 1990, whereby immigrant investors could obtain legal permanent residence in the USA based on investing the required capital and directly creating at least ten (10) jobs for U.S. workers. In order to obtain permanent residence through the EB-5 program, an interested investor must complete the following steps:
- Find a suitable project in which to invest
- Invest the required capital and file an I-526 petition with USCIS
- Obtain conditional permanent residency through the National Visa Center or through adjustment of status
- File an I-829 petition to remove conditions on permanent status.
For the purposes of this analysis, we will define “processing time” as the time from the filing of the I-526 petition until a final decision is obtained from USCIS on said petition.
As can be seen from the above chart, median processing times for I-526 petitions have been steadily rising since 2012. The median processing time (meaning the time it took to complete half the cases in a given time period) was 6.6 months in 2012 and 47.2 months in the first quarter of fiscal year 2023.
These numbers are not useful for prospective applicants for a few reasons. First, they do not give any information regarding how long it took to complete the other half of the cases (i.e. those that took longer than the median processing time). Second, they fail to consider retrogression: processing backlogs for countries such as China and India, where demand is high and visa availability is not current, and which do not impact petitioners from other countries. Since USCIS prioritizes filings with current visa availability (see below), petitioners from backlogged countries experiencing retrogression may wait in queue a very long time before being actively processed and thus skew median processing times upwards.
How cases are processed by USCIS
Based on a summary of communications from USCIS and IPO (the USCIS Immigrant Investor Processing Office) compiled and summarized by Suzanne Lazicki, author of EB-5 research and of the Lucid Text blog, the IPO processes forms I-526 as follows (current as of available data published mid-2022).
When they are received, I-526 petitions are first attributed to one of three queues depending on visa availability and project review status:
- Without visa availability. If there is no visa available for the petitioner’s country or category, the I-526 petition will be assigned to this queue. Visa availability is reassessed on a monthly basis. When a visa becomes available (or will be soon), the petition is moved to queue 2 or queue 3, depending on project review status.
- Project awaiting review. If the project in which the petitioner has invested has not yet been reviewed, the I-526 petition is moved to this queue. Petitions are organized by priority date, from oldest to most recent. Once the project review is complete, all petitions associated to the project (regardless of filing date) are moved to queue 3.
- Adjudication. I-526 petitions are placed in this queue when a visa is available (or will be soon) and when the project review is complete. This queue is organized by priority date, from oldest to most recent, and petitions are generally assigned on a first in, first out basis. Note, however, that, according to inside intel leaked to the author of the Lucid Text blog, the IPO seems to frequently deviate from the first in, first out processing method.
Further, the IPO has stated that its processing times for form I-956 (Application for Regional Center Designation) will meet or exceed the statutory goal of 180 days. As of this writing, there is not enough data to show whether or not this is the case since the RIA was implemented.
Additionally, it is important to note that, as of mid-2022, the IPO had 26 adjudicators for all I-526 petitions. They were also required to adjudicate other forms as well as perform mandatory non-adjudicative work. The IPO has stated that it has lost 30 I-526 adjudicators from 2020 to 2022. In 2018, they had 67 adjudicators and, in 2019, they had 56. It seems that the IPO has hired new adjudicators in 2022. “If and when USCIS hires more staff for EB-5, it takes an average 241 days to move a new USCIS adjudicator from hiring decision to completion of basic training, according to the CIS Ombudsman.”
Unknowns
There are many unknowns that make it impossible to give precise visibility on expected processing times for I-526 petitions. Here we take a look at some of them.
Impact of reserved visas
The EB-5 Reform and Integrity Act created new categories for reserved visas. Of the visas made available for the EB-5 program each fiscal year, 20% are now reserved for applicants who invest in rural areas, 10% are reserved for applicants who invest in a high unemployment area and 2% are reserved for applicants who invest in infrastructure projects.
For fiscal year 2023, there are 13,987 visas available to EB-5 investors, of which 9,511 are unreserved and 4,476 fall in the set-aside categories. Further, these reserved visas are subject to per country caps. For fiscal year 2023, the per country cap total is 979, of which 666 are unreserved and 313 are set-aside visas.
The unused visas are carried over to the reserved categories the next fiscal year. Reserved visas that are still unused after the second fiscal year are then released to the unreserved category. It is unclear how these reserved categories will fit into the IPO’s three-queue system. Supposing they don’t all get used in a fiscal year, this will reduce the number of standard visas available each fiscal year. Since back-logged petitions will be processed according to regulations in effect at the time of filing, they will not be eligible for these new reserved categories and thus are expected to be processed in the unreserved category, of which there are now fewer visas. Alternatively, the impact could be positive for petitioners from backlogged countries filing now as these visas are currently available. However, they will probably fill up quickly and be subject to important backlogs as well if demand remains. There seems to be a window of opportunity for petitioners from back-logged countries to break through and get faster processing.
Another consideration is whether these categories will be prioritized over unreserved visas. If USCIS simply adds them to the back of the queue and doesn’t process them until a few years from now, they will not be meeting the intent of the new legislation, which seems to be to create jobs in areas that need them now. There is currently no data regarding processing of petitions in reserved categories.
Impact of the EB-5 Reform and Integrity Act
With the enactment of the EB-5 Reform and Integrity Act, new obligations are imposed on Regional Centers. After the Act was enacted, “USCIS took the position that every previously approved regional center was terminated and had to file a new form (I-956) in order to apply for re-designation.” Following a settlement agreement with USCIS, it was agreed that previously approved Regional Centers who intend to sponsor new projects and new investors must file for an amendment of the Regional Center designation and ensure compliance with the RIA.The agreement states that petitions filed before the enactment of the RIA will not be denied on the basis that a previously approved Regional Center does not file a new application or amendment. However, the effect of the RIA on previously approved Regional Centers and whether they need to file new applications or amendments (or risk termination and the denial of petitions associated with them). USCIS has indicated that there is a need to clarify the requirements.
The decision regarding previously-approved Regional Centers could have an impact on processing times for EB-5 investors if the IPO considers that the petitions associated with them are awaiting project review and places them in queue 1 until the project is reviewed. Also, an influx of forms for authorization or amendment of Regional Centers could lengthen processing times depending on IPO staffing. It seems however as though form I-526 adjudicators are not responsible for reviewing Regional Centers and projects, according to available data.
IPO Staffing
As of mid-2022, the IPO had 26 adjudicators for all I-526 petitions, including a backlog of over 13,000 petitions. As mentioned previously, it seems that new adjudicators have been hired in 2022 and more may be hired in 2023. This will have a positive impact on processing times. However, it takes about 8 months for new hires to be fully trained, so the impact may not be seen immediately. In addition, the number of new hires is unknown as of this writing so their impact on processing times cannot be known at the moment.
Prioritization of petitions for rural areas
The EB-5 Reform and Integrity Act stipulates that petitions from investors in Regional center programs for rural areas shall be prioritized for processing and adjudication. As of this writing, there is no data regarding actual processing times. We also don’t have information regarding how these will fit into the IPO’s three-queue system. However, if the terms are to be taken at face value, new petitions that qualify for this prioritization would be processed and adjudicated ahead of previously-filed standard petitions. Depending on demand for such petitions, this could delay processing times for petitions in non-rural areas, including those that were filed before the RIA was enacted. Note that previously-filed petitions do not seem to qualify for this prioritization since they will be adjudicated according to the law in effect at the time of filing.
Available Data
In this section, we will take a look at the available data regarding EB-5 processing and see if any trends or insights can be gleaned from it.
Note: values below 1 mean that more petitions were processed than received while values above 1 mean that more petitions were received than were processed
What can this data tell us? First, we can see that there was a peak in the number of I-526 petitions received by USCIS in the years 2015-2016 and that demand has gone down drastically in the following years. There are many possible factors such as the long processing times discouraging investors from back-logged countries, the Covid-19 pandemic, the lapse of the regional center program in 2021 and the increase in the amount of investment required in 2019. It is not possible to accurately predict future demand from this data as it is unclear whether the peak was exceptional or whether we are currently in the middle of a hollow before demand ramps back up again.
Second, the data shows that USCIS has largely kept up with demand, though offset by a few years.
Third, since 2017, USCIS has generally been able to process more I-526 petitions than the number received. This means that they have been working at reducing the backlog rather than adding to it. The data shows that the number of petitions awaiting adjudication has been hovering around 13,000 to 15,000 since 2018, with a slight downward trend. Based on this data, we could expect that this downward trend will continue in the next few years.
Fourth, the rate of I-526 petition approvals has been relatively steady since 2008, around 80%. Assuming that the results for 2022 are exceptional, we can expect approvals to remain at the same level.
Finally, the median processing times in months has been increasing steadily since 2012 and, from this data, we can expect it to keep increasing in the following years. It is important to note that median processing time means that half of all petitions are adjudicated in less than this time while the other half take longer. It is also worth mentioning that this data seems to include the petitions from back-logged countries, which wait in the IPO’s first queue until visas become available and thus could give a skewed number as these petitions may be dormant for many months or years. The IPO started implementing this method of processing on March 31, 2020 and the data does show a sharp increase in processing times following this implementation (from 19 months in 2019 to 31.1 months in 2020). As such, we probably cannot make reliable predictions regarding processing times using this data.
Processing time estimates
The following processing time estimates are not based on any mathematical or statistical modelling as these did not yield favourable results due to the lack of pattern or trend in the data (note that there is a trend in the median processing times but, as explained above, we did not consider these numbers to be reliable in terms of forecasting future processing times). As such, the following estimates should be considered as “educated guesses” based on the above.
Priority processing for rural areas: 6-12 months
The EB-5 Reform and Integrity Act has a provision specifying that petitions involving projects in rural areas will be prioritized. Though we do not currently have data as to actual processing times nor do we know how USCIS plans to fit these in the three-queue processing system, experts have weighed in with their thoughts regarding what would be realistic. USCIS has a goal of 180 days for processing petitions. This goal is not currently being met, but experts expect this to be achievable for rural area petitions. They estimate that these petitions will be processed and adjudicated within 6 to 12 months. As there is currently no backlog for this category, this seems to be a realistic estimate.
Reserved categories (except rural areas)
Regarding the set-aside visas in categories other than rural areas, predicting processing times is a bit trickier. Once again, no data is available and we do not know how USCIS plans to deal with these petitions in terms of their three-queue system. For instance, will the petitions simply be added to the third queue and processed on a first in, first out basis like petitions in the unreserved category. In this case, the expected processing time would be similar to that of regular petitions in the unreserved category. However, Congress’ intent in implementing the RIA does not indicate that it wished for these visas to go unused for many years until USCIS catches up on the current backlog, especially as these reserved categories seem to target projects in areas where jobs are needed. A more likely assumption is that USCIS will prioritize these petitions in some way. This is speculation and we are unable at the moment to give an accurate estimate. It should be somewhere in the range between that of petitions in the unreserved category and that of those in rural areas.
Unreserved visas
As for unreserved visas, we will look at the worst-case scenario, the best-case scenario and a realistic scenario to estimate processing times.
First, the worst-case scenario. Suzanne Lazicki at Lucid Text has been analyzing data regarding EB-5 processing for many years. She also claims to have a confidential source who leaks her some unpublished data. As of December 2022, her data showed that the IPO was adjudicating 100-140 I-526 petitions per month. As there are over 12,000 pending I-526 petitions, she estimates that it will take about 8 years to process them all if the same processing rate is maintained. Note that this estimate does not consider the priority processing for rural areas petitions, which may reduce the number of petitions adjudicated in the unreserved category and lengthen the processing time.
Second, the best-case scenario. Looking back at USCIS processing data, we can see that the median processing time in 2012 was 6.6 months, and that’s with USCIS receiving over 6,000 I-526 petitions. This shows that it is possible, with a well-staffed IPO, to process petitions within about 180 days, as is their stated goal. The conditions do not seem to be as favourable at the moment, but we would estimate the best-case scenario for I-526 petition processing to be about 1 year, which includes 6 months for project review and 6 months for processing the petition itself.
Finally, the realistic scenario. Based on confidential data that was leaked to Suzanne Lazicki at Lucid Text, we can see that the greater proportion of petitions processed in fiscal year 2022 had been filed in 2018, indicating an actual processing time of about 4 years. In addition, this data shows that as of September 30, 2022, over 70% of petitions filed in Q1 of fiscal year 2019 (October 1, 2018 to December 31, 2018) had had a status update of some kind, compared with less than 30% of petitions filed in Q2 of fiscal year 2019. Based upon this data and the knowledge that new adjudicators were hired at the IPO (though the actual number is unknown) and that it will take some time to train these new hires, our processing time estimate for the realistic scenario is 3.5 to 4 years for petitions filed recently and those filed in 2023. We expect processing times to start going down more significantly once the new adjudicators are fully trained.
China and India
As for countries with no current visa availability, if the IPO maintains the same three-queue system, processing times for petitions already filed are expected to be similar to those for the unreserved category above, with the added delays due to visa unavailability. This cannot be predicted. However, India is currently stalled at December 8, 2019. Assuming that visas will become available eventually, we can estimate times by adding about 3 years to the above estimates for unreserved category petitions.
However, when it comes to reserved categories and rural area petitions, the expected processing times should be the same as for other countries, at least for 2023. The reserved visas are currently available and there is no backlog at the moment so an investor who can take advantage of this window of opportunity could bypass the long wait times for unreserved visas to become available.
One important thing to note with regards to visa availability in unreserved category is that wait times could become longer in the next few years due to the set-aside visas. This means that there will be less visas available for the unreserved category, which includes all the pending applications that were filed before the EB-5 Reform and Integrity Act was enacted. As such, it is reasonable to expect longer wait times for visas to become available for these petitions.
CONCLUSION
Tough these estimates are only “educated guesses”, they are based on the data we have available and on what we know about how petitions are processed by the IPO. They do not take into account unpredictable events (such as a global pandemic) and are to be used accordingly.
As a summary, here are the estimated processing times for I-526 petitions filed in 2023:
Rural areas (all countries): 6-12 months
Reserved categories, except rural areas (all countries): 1-4 years
Unreserved category (except China and India): 3.5-4 years
Unreserved category (India): 6.5-7 years
[1] Chapter 1 – Purpose and Background | USCIS
[2] Historic Processing Times (uscis.gov)
[3] Note that the U.S. government fiscal year runs from October 1 of the previous year to September 30 of the current year. Fiscal year 2023 runs from October 1, 2022 to September 30, 2023.
[4] IPO Times Quotes.docx (dropbox.com)
[5] IPO Times Quotes.docx (dropbox.com)
[6] This method has been implemented since March 31, 2020. Questions and Answers: EB-5 Immigrant Investor Program Visa Availability Approach | USCIS. In the same time, USCIS continues to work on I-526 petitions assigned for adjudication before this date.
[7] Processing Data | EB-5 Updates (lucidtext.com). For instance, in December 2022, the IPO adjudicated I-526 petitions with filing dates ranging from September 2015 to July 2022 (with a cluster around December 2018).
[8] IPO Times Quotes.docx (dropbox.com)
[9] IPO Times Quotes.docx (dropbox.com)
[10] Factors and Trends Underlying I-526 Processing Times | EB-5 Updates (lucidtext.com)
[11] EB-5 Statistics | EB-5 Updates (lucidtext.com)
[12] EB-5 Reform and Integrity Act, section 102(a)(2)(B)(i).
[13] https://travel.state.gov/content/dam/visas/Statistics/Immigrant-Statistics/Annual%20%20Numerical%20%20Limits%20-%20FY%202023.pdf
[14] EB-5 Reform and Integrity Act, section 102(a)(2)(B)(i)(II).
[15] About the EB-5 Visa Classification | USCIS
[16] Barnett, Oppenheim, Li, “Reserved Visa Rules, Possible Future Visa Allocation, and Recommendations”, Regional Center Business Journal, October 2022, page 10.
[17] Barnett, Oppenheim, Li, “Reserved Visa Rules, Possible Future Visa Allocation, and Recommendations”, Regional Center Business Journal, October 2022, page 10.
[22] IPO Times Quotes.docx (dropbox.com)
[23] August | 2022 | EB-5 Updates (lucidtext.com)
[24] Factors and Trends Underlying I-526 Processing Times | EB-5 Updates (lucidtext.com)
[25] EB-5 Statistics | EB-5 Updates (lucidtext.com)
[26] EB-5 Reform and Integrity Act, section 103(b)(1)(E)(ii)(I).
[27] Barnett, Oppenheim, Li, “Reserved Visa Rules, Possible Future Visa Allocation, and Recommendations”, Regional Center Business Journal, October 2022, page 10.
[28] The data used is compiled from USCIS reports and studies on Immigration and Citizenship Data: Immigration and Citizenship Data | USCIS.
[29] Questions and Answers: EB-5 Immigrant Investor Program Visa Availability Approach | USCIS
[30] Standard models and tools were used such as ARIMA and linear regression. While it would have been possible to fit a curve to the data, we did not feel that this would be appropriate for extrapolating future trends as the peaks and troughs seem to be related to unforeseen “random” circumstances rather than factors that would drive trends in the next few years.
[31] EB-5 lawyers talk I-526e processing times in 2022 & beyond (greencardbyinvestment.com)
