On July 18, 2023, United States Citizenship and Immigration (USCIS) announced an update to the visa availability approach to managing the inventory of Form I-526, Immigrant Petition by Alien Investor, as part of an effort to improve efficiency in the processing of these petitions. The announcement comes as USCIS has been under scrutiny regarding the lengthy processing times for EB-5 cases. At the time of writing, the processing time for a Form I-526 petition filed prior to the passage of the EB-5 Reform and Integrity Act of 2022 (RIA) is at least 56.5 months for those investors not subject to a visa retrogression.
The USCIS Immigrant Investor Program Office (IPO) manages the inventory of Form I-526 petitions through workflow queues. Previously, these queues operated on a first-in, first-out basis and accounted for factors such as whether a visa was available or would be soon (i.e., whether the investor’s country of birth was subject to a visa retrogression).
Effective July 18, 2023, USCIS announced that the IPO will implement a new strategy in handling the workflow queues of Form I-526 petitions by grouping these petitions into three “queues” for adjudication. The first queue will contain Form I-526 petitions where a visa is not available and is not likely to be available soon. Presumably, this would be the longest queue and would contain those petitions subject to visa retrogression for investors born in mainland China. The second queue contains I-526 Petitions where a visa is available or will be soon available, but where the IPO has not yet reviewed the investment project materials. The third queue will contain those I-526 petitions where a visa is available or soon available and where IPO has previously reviewed the project, or the I-526 is a “direct” or non-Regional Center petition. While USCIS has not stated this explicitly, this third queue would likely receive priority over the other two queues because visas are available and the project was previously approved in other I-526 petitions; therefore, only the investor’s source of funds would need to be reviewed by the IPO adjudicator.
According to USCIS, this update will allow adjudicators to process Form I-526 petitions more efficiently as they will be handling multiple petitions associated with the same new commercial enterprise (NCE) and consequently, adjudicators will be simultaneously reviewing petitions that have overlaps in project documents and issues presented.
Importantly, this announcement from USCIS does not state that Form I-526E petitions filed under the RIA would be placed into any of these queues. It is not clear from the announcement how USCIS will process Form I-526E petitions, nor has USCIS updated its processing time website to reflect Form I-526E as a type of petition that has a posted processing time. Instead, the July 18, 2023, announcement deals only with those older pending I-526 petitions filed prior to the passage of the RIA. While this new visa availability approach should enable the IPO to increase processing efficiency, reduce the backlog and completion times for Form I-526 petitions, and support consistency and accuracy in adjudications, it is not clear how quickly this change will impact I-526 petition processing times. USCIS has not released recent statistics about the number of IPO adjudicators assigned to Form I-526 petitions, nor does this announcement commit to any specific processing times. Instead, some investors seeking to expedite the processing of their I-526 petitions have filed mandamus actions in U.S. district courts, asking the courts to intervene and order USCIS to decide the I-526 petition due to an unreasonable delay caused by the IPO.