From the onset of the Covid-19 pandemic to as of recent, the EB-5 industry has seen a sharp increase in processing times. According to the latest data released by United States Citizenship and Immigration Services (USCIS), the average standard I-526 processing time is 46 months. This has understandably deterred potential investors and made immigration attorneys more hesitant to recommend EB-5 as a viable option for their clients. To put things in perspective, the average processing time in 2018 was just 17 months.
Priority Processing – What We Now Know:
Fortunately, there is now good news for those considering the EB-5 program. The EB-5 Reform and Integrity Act (the “RIA”), passed in March of 2022, introduced priority processing for investors selecting rural projects. Whereas before we could only speculate what exactly priority processing would entail, we now know the USCIS has adjudicators dedicated solely to processing rural EB-5 petitions. This makes sense given the target stated in the RIA that rural project investors should be approved within 120 days.
Although the USCIS is still a year or two away from achieving the 120-day processing goal, the current priority processing times are already significantly faster than what we have seen in the past decade. In a notable industry milestone, the first rural EB-5 petitions have already been approved and it only took 11 months. This demonstrates a much smoother and quicker processing experience for those investing in rural projects. It also demonstrates a key insight into the inner workings of the USCIS Investor Program Office since the passing of the RIA.
Originally the assumption was that I-526E (Post-RIA) petitions would only be adjudicated until after the USCIS was done processing all I-526 (Pre-RIA) petitions. However, we now know that they have opted instead to separate its case processors. That is to say that all pre-RIA EB-5 investors are being assigned to one set of case adjudicators and all post-RIA EB-5 investors are being assigned to a different set of case adjudicators.
Now the only question that remains is: how long non-rural I-526E (Post RIA) petitions will take to be adjudicated? The industry has yet to see an I-526E approval for a non-rural project. The RIA states 240 days for non-rural projects compared to 120 days for rural projects, so we can only conservatively assume that it will take up to twice as long. According to todays’ known processing times for rural projects, that would mean a non-rural I-526E petitioner could expect an approval in about two years.
What About Pre-RIA Investors?
For pre-RIA EB-5 petitions, the situation has been more challenging in recent years. To be fair, the USCIS data does not accurately reflect the reasons behind these extended processing times. A critical contributing factor was a pause of the Regional Center program from June 2021 to March 2022 as reforms were being made.
Moreover, many USCIS EB-5 adjudicators didn’t resume in-office work until sometime in 2022, which further affected processing efficiency. Working remotely with limited resources compared to an office environment led to inefficiencies and delays in the processing of complex EB-5 petitions, which often consist of hundreds of pages.
Taking into account almost a year of no processing due to the EB-5 Regional Center program lapse and two years of inefficient and untimely processing during the work-from-home period, the processing times for non-rural EB-5 petitions are expected to decrease significantly. It is anticipated that processing times should continue to get faster. This is especially true given that: A) The USCIS now has 42 case processors compared to a historical low of 22 during COVID; and B) the USCIS has implemented a new processing workflow specifically designed for pre-Reform and Integrity Act (RIA) I-526 petitions.
Now, more than ever, is the time to consider starting your EB-5 journey.
If you have been considering an EB-5 investment, it is recommended to act sooner rather than later. As the EB-5 processing times continue to decrease, the demand for the program is likely to rise again. By seizing this opportunity, you can position yourself for success and potentially benefit from a faster immigration process.
