The Immigrant Investor Program office (IPO) has decided to hold in abeyance I-526 Petitions until the adjudication of an associated Exemplar I-924 Petition, even when an associated I-526 Petition is past posted processing times. This has had a particularly detrimental effect on I-526 Petitions filed prior to Sept. 30, 2015, when there was a surge of Exemplar I-924 Petition filings.

To recap, prior to Sept. 30, 2015, there was a rush by developers and regional centers to file Exemplar I-924 Petitions in hopes of being “grandfathered” under current law, should the current law change. This was spurred by the introduction of the American Job Creation and Investment Promotion Reform Act, S. 1501, which delayed the effective date for regional centers approved as of the date such legislation was enacted by 1 year. You can find a point by point summary of S. 1501 on the EB-5 Investment Coalition’s website. As we all know, S. 1501 failed to pass and has not been reintroduced in the 115th session of Congress.

The effect of this legislation was to spur many regional centers to automatically file an Exemplar I-924 Petition whenever they begin soliciting investors for a new project. This was not always the case prior to this legislation, as there was not, and currently is not, any law, regulation, or policy which requires an Exemplar I-924 Petition to be filed prior to soliciting investors for a new project. See USCIS Policy Manual Vol. 6, Part G, Chapter 3, Section D.

USCIS’ official policy of adjudicating all applications and petitions, whether related to the EB-5 Program or another area of immigration, is to generally process each application and petition on a “first-in, first-out” method (FIFO), with certain exceptions for approved expedited requests. In the EB-5 context, the IPO has repeatedly stated its attempted adherence to FIFO while acknowledging that processing efficiencies are gained by grouping adjudications via regional center or new commercial enterprise. We have written about this in connection with EB-5 previously, and USCIS has also made reference to this in the EB-5 context.

However, without acknowledging it publicly via stakeholder engagements, USCIS has a policy to hold in abeyance pending I-526 Petitions when an Exemplar I-924 Petition associated with the same new commercial enterprise has been filed. USCIS will then adjudicate the Exemplar I-924 Petition prior to adjudicating the I-526 Petitions. While there may be some internal processing efficiency from adjudicating an Exemplar I-924 Petition prior to an earlier filed I-526 Petition, it is unclear how this procedure is substantively advantageous to individual investors. The practical effect of this policy, when coupled with the surge in filings of Exemplar I-924 Petitions prior to Sept. 30, 2015, has resulted in a number of situations where I-526 Petitions have been pending 10-12 months past posted processing times.

It does not appear that this policy has resulted in a decrease in processing times. A large amount of I-526 Petitions and Exemplar I-924 Petitions filed during the summer and fall of 2015 are still pending with USCIS. Indeed, USCIS’ most recent processing times, dated as of March 8, 2017, show that USCIS is currently processing I-526 Petitions filed as of Sept. 27, 2015. You can find the most recent processing times on the USCIS website.

Additionally, this policy may discourage the filing of an Exemplar I-924 Petition after an investor in a regional center has filed a related I-526 Petition because that I-526 Petition may be delayed beyond processing times. Another consideration is that when USCIS does not adjudicate I-256 Petitions within processing times, investors can become skittish and withdraw their petitions, which, in turn, may cause regional centers and developers to lose investors. Hopefully, USCIS will revise these procedures so that any I-526 Petition pending past posted processing times will be adjudicated, regardless of whether or not a related Exemplar I-924 Petition is pending.