20 Nov EB-5 Update – USCIS EB-5 Processing: Not Quite First-in-First-Out
Washington, D.C. – November 20, 2017: The recent USCIS EB-5 Stakeholder Engagement held in New York on November 7, 2017 provided some frank statements by USCIS that their EB-5 processing system has improved, but is still suffering from certain longstanding problems.
One issue that will sound familiar to both EB-5 industry experts and individual investors is the fact that USCIS does not manage to abide by its “first-in-first-out” policy. The first-in-first-out policy seeks to adjudicate investor I-526 and I-829 visa petitions in the order that they were received. The goal is that earlier-filed visa petitions should be adjudicated by USCIS before later-filed visa petitions.
In our law firm’s many years of experience with the EB-5 Program, our clients and investors have experienced a more unpredictable adjudication pattern. I-526 and I-829 visa petitions are adjudicated generally according to stated USCIS average processing times, but the first-in-first-out goals has sporadically been met. Sometimes visa petitions filed on the same date are adjudicated by USCIS months apart – even though each is approved by USCIS without a Request for Evidence.
In the November 7, 2017, EB-5 Stakeholder Engagement, USCIS explained some of the causes for these problems, and indicated that it is attempting to fix them. One reason why USCIS does not always hold to the first-in-first-out system is based on the need for USCIS to adjudicate EB-5 project issues separately from the investor’s personal source of funds issues. USCIS will take a sample of pending I-526 visa petitions (at least two – though sometimes more) and will adjudicate the initial sample I-526 visa petitions for both project issues and individual investor source of funds issues. This means that the initial sample of I-526 visa petitions will be adjudicated ahead of the remaining group of pending I-526 visa petitions for the same project. Additionally, once an I-526 is approved or an I-924 exemplar is approved for a project, later filed I-526 visa petitions will be adjudicated directly for individual investor source of funds issues and not be processed for project issues. Both of these two circumstances mean that later filed cases are sometimes adjudicated before earlier filed cases.
USCIS expressed its desire to comply with the goal of processing visa petitions in sequence, on a first-in-first-out basis. USCIS comments to stakeholders, however, seem to recognize that the particular needs of the EB-5 program, which includes both project issues and individual investor source of funds issues, may not make this possible in the short run.
Fortunately, USCIS indicated that it is dedicating resources to improving USCIS processing times for I-526 and I-829 processes. This fact should help reduce the occurrence of long processing delays, which ultimately will help all EB-5 investors in the program.
I.A. Donoso & Associates, LLC, is a law firm based in Washington, D.C., and is recognized as a leading immigration law firm with renowned expertise in the EB-5 program.