Written By Suzanne Lazicki
Suzanne Lazicki
Suzanne Lazicki is the founder of Lucid Professional Writing, specializing in EB-5 business plans and immigration consulting. Holding an MBA and a summa cum laude B.A. in English, she is a respected author and expert, recognized as one of the top business plan writers in the EB-5 industry
EB-5 processing is in recovery after years of delays and confusion for EB-5 investors. Individual I-526, I-526E and I-829 processing times have recently received approvals in a year or less, even as USCIS continues to report median processing times over four years for I-526 and I-829.
The range of processing experience reflects transition behind the scenes at USCIS, and the first fruits of a trend toward increased processing volume after years of upheaval. Petitions with five-year processing times waited through extraordinary events including COVID-19 shutdowns, the regional center program shutdown, and the USCIS budget crisis and hiring freeze.
Meanwhile, petitions newly filed since 2022 are starting their process under different conditions, including a newly-increased staff at the USCIS Investor Program Office (IPO), new procedures and processing goals established by the EB-5 Reform and Integrity Act (RIA), and an agency-wide effort to reduce backlogs.
The goal to bring EB-5 petition processing times down to less than a year is already a reality for some petitions. It is on track to become the norm, as USCIS recovers from past processing interruptions and pours resources into backlog reduction efforts.
Context for Processing Time Improvements
Advances in EB-5 processing are part of agency-wide efforts to improve processing. On February 9, 2024, USCIS proudly announced that the agency has “reduced its backlog for the first time in over a decade,” thanks to a record number of case completions in FY2023.
This effort has been driven by the agency’s current strategic priorities “to uphold America’s promise as a nation of welcome and possibility by reducing backlogs, improving customer experience, addressing humanitarian needs, and strengthening employment-based immigration.” USCIS reports that “In FY 2024, the agency is continuing to build on this progress while monitoring and addressing remaining processing delays.” USCIS hopes to support additional improvements based on a filing fee increases that will take effect in April 2024, and a supplemental funding requested from Congress.
Processing improvements in EB-5 have been further motivated by the EB-5 Reform and Integrity Act, which set “Timely Processing” goals of less than a year for all EB-5 forms, mandated “priority processing” for EB-5 petitions associated with rural projects, and promoted efficiency by reducing I-526E adjudication to source of funds review only. Speaking at an EB-5 Stakeholder Meeting in April 2022, new IPO Chief Alissa Emmel discussed efficient and timely processing as important goals for her office in the wake of RIA.
I know our processing times have been an issue with stakeholders for years and I want you to know IPO shares your concerns. I’d like to echo what Director Jaddou said earlier. We continue to look for efficiencies, especially now as we implement the new legislation. I want you to know that we are taking critical steps to reduce processing times for I-526s and I-829s. Know that this goal will take some time to achieve for the reasons I’m about to discuss.
Processing improvements have indeed taken time, but the steadily improving processing volumes for I-526 and I-829 since 2022 demonstrate that where there’s a will, there’s a way. Processing times ballooned when efficiency ceased to be a value under prior USCIS and IPO leadership, and have had a chance to recover under current priorities.
Positive Indicators for EB-5 Processing Time Improvement
Increased Capacity at IPO and Processing Volume Increases
After years of losing staff (falling to a low of 177 employees and 60 vacancies by mid 2022), IPO hired scores of new employees in 2023, including I-526 and I-829 adjudicators, support staff, and managers tasked to improve efficiency.
The effects of staff increases have begun to show in increased completion rates (i.e. the number of final actions including approvals and denials). The most recent officially-reported quarter (July-September 2023) had the highest number of I-526 completions since 2018, the highest I-829 completions since 2020, and the first-reported I-526E approvals. After averaging fewer than 250 I-526 decisions per month between 2019 and 2022, IPO managed an average of 430 I-526 completions per month in FY2023 Q4 (official report) and exceeded 700 I-526 completions in February 2024, based on preliminary data.
Backlog Reduction
I-526 completion rates are closing the gap with the I-526 backlog. As of September 2023, USCIS reported that I-526 had a gross backlog of 9,527 cases, but a net backlog of only 3,400 cases.
The net backlog represents the current potential active workload (i.e. not including I-526 with visas unavailable or waiting for an RFE response). That net I-526 backlog can be cleared within the next few months, if completion rates continue to exceed 700 per month.
USCIS has already primarily been processing I-526 filed in November 2019, close to the end of the pre-RIA backlog.
I-829 processing is a greater hurdle, with net backlog of 9,100 petitions and completion rates that only started to approach 300 per month at the end of 2023. Nevertheless, I-829 processing should continue to benefit from additional resource allocation, particularly as the I-526 backlog comes under control.
Changing Factors Behind Processing Times
The USCIS processing time report is backward-looking, reporting on completed processing times that are not predictive unless the future replicates the factors that shaped the past.
Median processing times of four to five years for recently-adjudicated I-526 and I-829 were created by extraordinary factors since 2019 including an I-526 filing surge in 2019 followed by Pandemic shutdowns in 2020, a USCIS budget crisis with major staffing loss and hiring freeze in 2020/2021, USCIS and IPO leadership transition in 2020/2021, the 11-month regional center program shutdown in 2021/2022, and transition to implement a new EB-5 law and forms in 2022.
With the days of global pandemics and program shutdowns in the past, one hopes, and capacity and staffing issues being addressed, processing has a chance to find its feet again in improved conditions.
It’s also important to note that statistics in the USCIS report elide a wide range of individual experience. For example, in December 2023, USCIS approved three I-526 that had been filed in 2021/2022 and 63 I-829 that had been filed in 2022/2023, even as the longest-deferred decisions that month were on cases filed in 2015/2016. Meanwhile, by September 2023 USCIS had already approved 63 I-526E petitions filed in 2022/2023.
I-526 decisions can be individually delayed by visa availability and individually hastened by expedited processing (based on factors such as national interest), priority processing (now required for rural projects), project association (in 2023 USCIS announced batch processing by project for pre-RIA I-526, while I-526E can be processed in batches following I-956F approval), and pressure to avoid visa loss (which motivates processing for post-RIA high unemployment and rural set-aside petitions).
Meanwhile, I-829 adjudications also appear to be batched by project, not strictly on a first-in-first-out basis, resulting in the recent distribution of I-829 approvals spread between 2019 and 2023 filing dates.
The EB-5 Reform and Integrity Act set target processing times of less than a year for I-526, I-526E, and I-829. As of 2024, those targets have already been realized for a few adjudications and may become the reality for all of them, if USCIS and the Investor Program Office continue to pursue processing time and backlog reduction goals.
