Questions and Answers: EB-5 Immigrant Investor Program Visa Availability Approach

EB-5 Visa Petition Processing

Questions and Answers: Visa Availability Approach to Prioritizing Immigrant Petitions by Alien Investor (Form I-526).  

---------------

Q1. What is the visa availability approach to prioritizing adjudication of Form I-526?

• A1. As of March 31, 2020, we began first processing petitions for investors for whom a visa is either now or soon will be available. Form I-526 captures a petitioner’s country of birth, which is compared with Chart B of the U.S. Department of State’s monthly Visa Bulletin, which shows visa availability for that country. We use this information, along with other factors, to determine which Form I-526 petitions we should process first. Petitioners can check when to expect processing of their Form I-526 petition on the USCIS Processing Times page.

Q2. How is a visa availability approach different from a strict first-in, first-out (FIFO) approach?

• A2. The significance of this processing change is that, effective March 31, 2020, we began first processing petitions for investors for whom a visa is either now or will soon be available. Under a strict FIFO process, we would process Form I-526 petitions in the order received. Consequently, petitioners without visa numbers available would be processed ahead of those with visa numbers available, given that the oldest Form I-526 petitions were primarily from countries that were oversubscribed. (“Oversubscribed” means that a country’s visa demand exceeds the supply of visa numbers available for allocation in a given classification from the U.S. Department of State). 

Q3. What petitions does this change affect?

• A3.  USCIS applied the visa availability approach to all pending Form I-526 petitions as of March 31, 2020. At the same time, USCIS continued to work on Form I-526 petitions assigned for adjudication before March 31, 2020.

Q4. Why is USCIS implementing this visa availability approach?

• A4. This change in Form I-526 prioritization aligns EB-5 processing with certain other USCIS operations and programs that involve numerical caps for visa availability (for example, preference category family visa petitions). This change  aligns better with congressional intent for visa allocation  and increases fairness in the administration of the EB-5 immigrant investor program.

Q5. How often will USCIS assess visa availability throughout the year?

• A5. The USCIS Immigrant Investor Program Office (IPO) assesses visa availability monthly by reviewing the Department of State Monthly Visa Bulletin.

Q6. How will USCIS report Form I-526 processing times?

• A6. The USCIS Office of Performance and Quality reports processing times online and makes every effort to update the processing times every month. 

Q7. Agency priorities and resources may change. Does the new visa availability approach apply indefinitely or only for fiscal year 2020?

• A7. USCIS implemented the visa availability approach on March 31, 2020. USCIS is unable to speculate on future changes.

Q8. How will USCIS handle expedite requests for Form I-526 petitions when a visa is not immediately available or available soon?

• A8. USCIS will review the expedite request in line with the agency’s standard guidelines. An approved expedite means that USCIS will expedite processing by taking the application or petition out of order. Once USCIS has assigned the petition to an officer, the timeline for reaching an adjudicative decision will vary.

Q9. How will USCIS respond to case inquiries for cases when a visa is not immediately available or is not available soon?

• A9. USCIS created standard language for responses to such inquiries, which inform the petitioner that the case remains pending and direct the petitioner to the USCIS processing time page.

Q10. Has USCIS considered the impacts of the change to petitions submitted before this update?

• A10. USCIS has considered potential adverse impacts and reliance interests, such as delays for those with already pending petitions from oversubscribed countries. USCIS sees many benefits to changing to a visa availability approach, specifically for petitioners from countries where visas are immediately available, because these petitioners would be better positioned to use their annual per-country allocation of EB-5 visas. Additionally, this change increases parity with other agency practices, aligns with congressional intent, and provides immediate relief for certain petitioners from underrepresented countries currently subject to significant wait times due to the current process. Moreover, this change does not create legally binding rights or penalties and does not change eligibility requirements.

Q11. How will USCIS handle cases where the investor may be eligible to charge his or her immigrant visa to a country other than the investor’s country of birth?

• A11. If the investor would be eligible to charge his or her immigrant visa to a country other than the investor’s country of birth, the investor should email IPO at uscis.immigrantinvestorprogram@uscis.dhs.gov and identify the foreign state of cross-chargeability and the basis of cross-chargeability (for example, his or her spouse’s country of birth). If the investor provides sufficient information or documentation, IPO will consider visa availability associated with the foreign state of cross-chargeability when determining whether to assign the Form I-526 petition for adjudication.

Q12. How many personnel were assigned to IPO at the beginning of FY2021?

• A12. At the beginning of FY 2021, IPO had about 236 dedicated personnel, including support staff, adjudicators, economists, Fraud Detection and National Security personnel, and other positions vital to the IPO mission. The number of adjudicative resources and personnel assigned to each EB-5 form type varies according to workload demands and agency priorities.

Q13. The visa availability approach prioritizes the assignment of Form I-526 petitions for investors with an available visa or a visa that will be available soon. Currently, how does IPO generally organize its Form I-526 petition inventory based on this prioritization?

• A13. The visa availability approach to managing inventory applies to pre-EB-5 Reform and Integrity Act Form I-526 petitions. IPO manages this Form I-526 petition inventory through workflows factoring in whether:
  • A visa is available (or will be available soon); and
  • The underlying project has been reviewed.

Workflows are generally managed in FIFO order when a visa is available or will be available soon. Please see this description (PDF, 238.48 KB) for more information.

Additionally, effective July 18, 2023, IPO began grouping petitions by new commercial enterprise (NCE) with filing dates on or before Nov. 30, 2019, within the workflow of petitions where the project has been reviewed and there is a visa available or soon to be available. These petitions are assigned by NCE using a FIFO methodology, namely, by date of the earliest filed petition in that workflow for each NCE. Given the large volume of petitions filed shortly before the EB-5 modernization rule (now vacated) had taken effect in November 2019 and because the project documents are often the same, assigning multiple petitions associated with the same NCE to the same adjudicator or adjudicators enables IPO to gain greater processing efficiencies, reduce the backlog and Form I-526 completion times, maximizes visa usage, and supports consistency and accuracy in adjudications, while maintaining fairness given the closeness in the filing dates of these petitions.

As of April 2024, we began extending the grouping of Form I-526 petitions to include petitions with filing dates up to March 2022. We found that we gained notable processing efficiencies on account of grouping petitions with filing dates on or before Nov. 30, 2019, and believe that extending this processing window to March 2022 will further capitalize on those efficiencies as we work diligently toward backlog reduction.

Q14. What methodology does USCIS currently use to calculate Form I-526 processing times?

• A14. See https://egov.uscis.gov/processing-times/more-info for more information.