30 Mar Does New USCIS Policy Help EB-5 Investors?
Washington, D.C., March 30, 2022: On March 29, 2022, USCIS issued the long-awaited policy guidance and regulatory initiatives to reduce the outrageous delays plaguing the U.S. immigration system for the last 36 months.
EB-2 National Interest Waiver applicants and EB-1C multinational managers are particularly interested in the potential for Premium Processing of I-140 petitions. This would be a quantum leap forward compared to the 12-18 months processing times experienced today with out 15-day Premium Processing.
EB-5 investors are receiving these news with two concepts in mind. First, “it’s about time”. EB-5 investors pay high filing fees and have faced processing times that have exceeded any reasonable boundaries: 36+ months for adjudication of an I-526 visa petition (!) 18 months for adjudication of an I-485 application (!) 36+ months for adjudication of an I-829 petition.
Second, EB-5 investors are barely finished digesting the implications of passage of the EB-5 Reform and Integrity Act of 2022 (“Act”) on March 15, 2022, which re-authorized the EB-5 Regional Center program for 5 years. The Act introduced program improvements including simultaneous filing of Form I-526 with Form I-485 Adjustment of Status even prior to approval of Form I-526.
Now, after yesterday’s policy guidance on the Biden Administration’s efforts to bring about improvements to processing times, EB-5 investors are anxiously awaiting news that these improvements will help them.
We prepared the following summary:
1. The new policy guidance on premium processing and more efficient adjudication does not include Form I-526 visa petitions at present. So, there is no indication (yet) that USCIS is willing to offering accelerated Premium Processing for I-526 petitions.
There are, nevertheless, some hopeful signs for the coming months:
2. The Act provides guidance for USCIS to seek to adjudicate Form I-526 EB-5 petitions in approximately 240 days. The USCIS will need many months to achieve this goal, but it points toward faster adjudication. Unfortunately, USCIS is given a mandate to evaluate whether additional filing fees are required to pay for faster processing. Please note that the Act already includes an additional $1,000 filing fee for new I-526 petitions.
3. USCIS is indicating that its goal is to reduce I-485 processing times to 6 months. They will need many months to achieve this goal, but it points toward faster adjudication.
4. USCIS indicating that its goal is to reduce I-765 processing times to 3 months. Again, this will take time to achieve, but does offer some hope of faster adjudication.
5. The Biden Administration extended the validity of approved I-765 work permits under I-485 Adjustment of Status for 2 years. As background, Form I-765 temporary work permits are “open” work permits that allow a person to work as an employee, contractor or in their own company. Form I-765 is frequently filed in conjunction with the Form I-485 Adjustment of Status application.
6. Donoso & Partners is keeping close track of whether the I-765 work permit application by itself can be “upgraded” to premium processing after filing Form I-485. We are looking towards release of the new regulations in approximately 60 days.
7. Finally, USCIS adopted a policy in January 2022 of using its discretion to “waive” in-person visa interviews for I-485 Adjustment of Status applications based on employment-based green cards. This includes EB-5 petitions. The Adjustment of Status approval is simply issued by mail in conjunction with the green card.
If we evaluate these changes and initiatives together, there is a clear trend towards providing users of the immigration system more efficient and more predictable processing times.
This is a welcome improvement to the U.S. immigration system. Delays in processing combined with the tendency for USCIS to adopt a “bunker” mentality towards communicating with the public was tarnishing the image of the USCIS, and causing needless anguish and separation to thousands of families and business.
Donoso & Partners, a leading immigration law firm based in Washington, D.C., will continue to report on developments regarding the immigration law and policy through our news section of donosolaw.com.