By statute, the Office of the Citizenship and Immigration Services Ombudsman submits an Annual Report to Congress by June 30 of each year. The Office of the Ombudsman’s Annual Report provides a summary of the most pervasive and serious problems encountered by individuals and employers applying for immigration benefits with U.S. Citizenship and Immigration Services (USCIS) and reviews past recommendations to improve USCIS programs and services.

The Office of the Ombudsman’s 2021 Annual Report details that the pandemic compounded USCIS’ already-strained processing and fiscal situation, with the agency now experiencing backlogs of applications and petitions “at record levels,” as well as drastically reduced “customer service functions.” The aforementioned is in most part due to temporary office closures, reduced staffing, and lack of end-to-end electronic processing capabilities for many benefit types. Near-total shutdown of the agency’s offices in March 2020 also significantly affected already-low receipts and fee revenue insufficient to cover operating costs and led to mass cancellation of in-person interviews, biometrics appointments, and oath ceremonies.

The Office of the Ombudsman’s 2021 Annual Report details that USCIS field offices were only gradually reopened at limited capacity—with reduced services and fewer staff—starting in June 2020. All USCIS field offices were open by October 2020 but were offering services at only about 50% capacity at that time. As a result, backlogs and processing times grew substantially throughout 2020. Due to temporary office closures and reduced staffing, USCIS cancelled roughly 280,000 interviews at the start of the pandemic. But the agency lacked the staff to reschedule all of these interviews in a timely fashion because, even after reopening, application support centers were operating at 65% or 70% capacity at best. According to USCIS statistics, approximately seven million applications and petitions were pending as of March 31, 2021. Additionally, the report states that the agency’s backlog was significantly exacerbated for two reasons: first, applicants and petitioners rushed to file before a proposed fee increase was due to take effect Oct. 2, 2020 (although the increase was never actually implemented); and second, after the new fiscal year began on Oct. 1, 2020, thousands of applicants filed all at once when their priority dates became current. Since USCIS offices were still operating at reduced staffing levels during October 2020, there were not enough personnel to process all the new applications and petitions.

The Office of the Ombudsman’s 2021 Annual Report makes a number of recommendations as to how the agency can best work through its backlog, first recommending that the agency not rely entirely on fees to fund its operations, as fees are inherently unpredictable. The report recommends some combination of fee revenue and congressionally appropriated funding to enable the agency to effectively improve operational deficiencies. The Biden administration agrees that USCIS requires additional funding, and President Biden’s first budget allotted $350 million to USCIS for backlog reduction purposes. On June 30, 2021, the House Appropriations Committee approved the fiscal year 2022 Homeland Security funding bill, which included $474.5 million for USCIS, an increase of $346.7 million above the fiscal year 2021 enacted level. However, until this bill is passed, USCIS may struggle to resolve its backlogs and processing time delays. The Office of the Ombudsman’s 2021 Annual Report also details that USCIS has made strides in expanding online filing and digital adjudications, but its goal of an end-to-end electronic strategy has yet to be fully achieved.

The State Department recently published the July 2021 Visa Bulletin. In the July 2021 Visa Bulletin, the final action priority date for EB-5 Vietnam moved forward significantly to April 1, 2020. This means that an EB-5 investor born in Vietnam who filed an I-526 Petition on or before March 31, 2020, may have a visa number immediately available on July 1, 2021, and can process for a conditional green card upon I-526 Petition approval. This significant advance will make the majority of all pending and approved I-526 petitions for investors born in Vietnam “current,” meaning there is no visa backlog.

July 2021 Visa Bulletin

Importantly, the EB-5 Regional Center program is set to expire on June 30, 2021, and therefore the “5th Regional Center (I5 and R5) currently says “U” for unavailable.  Division O, Title 1, Section 104 of the Consolidated Appropriations Act, 2021 extended the Regional Center program until June 30, 2021. The Visa Bulletin states that EB-5 immigrant visas based on an approved I-526 Petition affiliated with a regional center may be issued until close of business on June 30, 2021, and may be issued for the full validity period. No EB-5 immigrant visas may be issued overseas, or final action taken on adjustment of status cases, after June 30, 2021, until the EB-5 Regional Center program is reauthorized by Congress.

On May 31, the Congressional Hispanic Caucus announced, “Following CHC Request, GAO Agrees to Open Investigation into Record-Breaking Immigration Case Backlog at USCIS,” in which Chairman Castro stated the following:

My colleagues in the Hispanic Caucus and I look forward to reviewing GAO’s findings. We must ensure that USCIS is meeting its Congressional mandate and is adjudicating cases in a timely manner.

The full text of the U.S. Government Accountability Office letter can be found here.    

There has been increased dialogue on visa backlogs in recent weeks. See USCIS Responds to Bipartisan Senate Letter Regarding Case Processing Delays and USCIS Releases 2018 Statistical Annual Report

In May, EB-5 practitioners were unpleasantly surprised by a USCIS publication of dramatically increased adjudication times for I-526 petitions from 21 to 29 months to 29 to 45.5 months

The GAO estimates it will take five months to assemble the required team to conduct the analysis. In the interim, to engage in this process, interested stakeholders can contact GAO through the team members cited in the congressional correspondence.

Please check back, as updates on this and other matters are frequently posted.

On May 6, 2019, Charles Oppenheim, chief of the U.S. State Department Visa Control and Reporting Division, presented at the IIUSA Conference in Washington, D.C. on the state of visa backlogs for EB-5 immigrant visa applicants. Mr. Oppenheim reported on a number of important issues summarized in this blog.

Between approximately Oct. 1, 2018, and April 30, 2019, a total of 5,077 EB-5 immigrant visas were issued to applicants and their dependent family members for fiscal year (FY) 2019. In general, applicants born in mainland China used less visa numbers this year than the rest of the world, while applicants born in Vietnam and India have used 10% or more EB-5 visa numbers this fiscal year as compared to the last fiscal year. There are approximately 10,000 immigrant visas available for applicants in the EB-5 category each fiscal year.

Mainland China-Born Applicants

Applicants born in Mainland China have historically used most of the EB-5 visas. As a result, China has the longest wait time for an EB-5 visa. The State Department anticipates that around 3,660 “unused” visa numbers from FY 2019 will be made available to Mainland China-born applicants with the earliest priority dates.

Moreover, the State Department does not expect significant movement in the Visa Bulletin at the start of the next fiscal year for Mainland China-born investors. Mr. Oppenheim stated that the October 2019 Visa Bulletin will advance the priority date for Mainland China-born applicants to between Oct. 8-15, 2014. For those filing an I-526 Petition today, the expected wait time could be about 16 years. However, according to Mr. Oppenheim, the wait time for applicants who filed before May 6, 2019, is expected to be less.

Vietnam-Born Applicants

Mr. Oppenheim explained that Vietnam continues to be the country with the second highest EB-5 visa demand, behind Mainland China. In FY 2018, Vietnam used 7.2% of all EB-5 visas. In FY 2019, Vietnam is expected to use 10.7% of all EB-5 visas. Additionally, Vietnamese investors tend to have more derivative beneficiaries than other countries (which include a spouse and children under 21), and therefore less visa numbers are available overall for principal applicants. The State Department expects that the October 2019 Visa Bulletin will advance the priority date for Vietnam-born applicants to between Nov. 22, 2016 to Dec. 15, 2016. For new applicants filing an I-526 Petition today, the expected wait time could be approximately seven years, but Mr. Oppenheim was clear that this length of delay does not reflect the wait time for applicants who filed before May 6, 2019.

India-Born Applicants

Mr. Oppenheim expects to institute a cutoff date in the Visa Bulletin for the first time in July 2019 for applicants born in India, although this could occur in June 2019. If so, there will likely be an alert regarding this in the June 2019 Visa Bulletin. Accordingly, EB-5 visa applicants born in India with an approved I-526 Petition should take steps to expedite their case with the National Visa Center to have an interview scheduled and a visa issued as soon as possible. Likewise, India-born EB-5 visa applicants with an approved I-526 Petition who are in the United States in valid nonimmigrant status should take immediate action to file Form I-485.

Between July and September 2019, the State Department expects to retrogress immigrant visa availability to Indian-born EB-5 investors.; it is also expected that the October 2019 Visa Bulletin will advance the priority date for India-born applicants to between Summer 2017 and Fall 2017. For new applicants filing an I-526 Petition today, the expected wait time could be up to eight years, but Mr. Oppenheim was clear that this length of delay does not reflect the wait time for applicants who filed before May 6, 2019.

Rest of the World and Additional Information

The State Department indicated that all other countries will remain current through the end of FY 2019. Mr. Oppenheim made clear that any information provided is just an estimate of the backlog wait times, which cannot and do not account for all variables. Further, the Visa Bulletin predictions do not take into account I-526 Petition withdrawals or revocations, deaths, children aging out, and many other factors, all of which result in availability of immigrant visas to EB-5 applicants. Importantly, these predictions also do not take into account any changes that could happen through statute, new regulations, or other government action.

For more on visa backlog updates, click here.

On June 9, 2021, USCIS issued three new Policy Alerts in the USCIS Policy Manual. These updates support Executive Order (EO) 14012, “Restoring Faith in Our Legal Immigration Systems and Strengthening Integration and Inclusion Efforts for New Americans,” directing federal agencies to identify strategies that promote inclusion and identify barriers that impede access to immigration benefits, issued by President Biden on Feb. 2, 2021. The Policy Updates outline those changes that USCIS made, including:

  1. Clarifies the criteria and circumstances for expedited processing, including providing benefit requestors and USCIS officers further guidance on when expedited processing may be warranted as well as clarifying what USCIS considers an emergency situation, (e.g., a critical need to travel to obtain medical treatment in a limited amount of time). USCIS considers all expedite requests on a case-by-case basis and generally requires documentation to support such requests. A benefit request may be expedited in the following circumstances: it will cause severe financial loss to a company or a person; it is for emergency and urgent humanitarian reasons; it is for the interest of the U.S. government or it is to clear USCIS error. In addition, nonprofit organizations (as designated by the Internal Revenue Service) whose request is in furtherance of the cultural and social interests of the United States may request that a benefit be considered for expedited processing, even if premium processing is available for that benefit. The Policy Alert also clarifies that expedited requests for noncitizens with a final order of removal or noncitizens in removal proceedings are coordinated between USCIS and U.S. Immigration and Customs Enforcement. (ICE).
  2. Improves request for evidence (RFE) and notice of intent to deny (NOID) guidance. USCIS now returns to the adjudicative principles of a June 2013 memo that instructed agency officers to issue an RFE or NOID when additional evidence could potentially demonstrate eligibility for an immigration benefit. The Policy Alert provides guidance on when and how officers should issue RFEs and NOIDs as well as timeframes and options for benefit requestors to respond to RFEs and NOIDs. Only if the totality of the evidence submitted does not meet the applicable standard of proof, and the adjudicator determines that there is no possibility that additional information or explanation will cure the deficiency, then the adjudicator shall issue a denial. Pursuant to this update, an officer should generally issue an RFE or NOID in cases involving insufficient evidence before denying such cases. This reverses the previous administration’s more restrictive RFE and NOID policy.
  3. Increases the validity period for initial and renewal employment authorization documents (EADs) for applicants seeking adjustment of status under Section 245 of the Immigration and Nationality Act (INA). This is expected to reduce the number of employment authorization requests USCIS receives, allow the agency to shift limited resources to other priority areas, and ease an unnecessary burden on individuals waiting on the adjudication of their adjustment of status applications. This is particularly important for those applicants who may be stuck in a visa backlog and have a long-pending I-485 application. The guidance is effective immediately.

The changes by USCIS are consistent with the Biden-Harris administration’s priorities to eliminate unnecessary barriers to the legal immigration system and reduce burdens on noncitizens who may be eligible for immigration benefits, according to Acting USCIS Director Tracy Renaud.

The Department of State’s May 2021 Visa Bulletin showed limited movement for the EB-5 category and previewed what may be the state of priority dates for the EB-5 category for the remainder of the fiscal year.

As in recent months, the EB-5 priority dates for Chart A Final Action Dates remained current for investors born in all countries except Vietnam and China. Chart A Final Action Dates represent the date immigrant visas are available. Although the final action cutoff date for Vietnam advanced by two months to Feb. 15, 2018, the final action cutoff date for China saw no movement and remained at Aug. 15, 2015, where it has been since September 2020.

Furthermore, according to Charles Oppenheim, Chief of the Visa Control and Reporting Division of the U.S. Department of State, the Chinese EB-5 category already has over 5,000 documentarily qualified applications that are current for final action, which is more than enough to meet the visa cap for the fiscal year. As such, the final action cutoff date for the EB-5 category for China may not see any significant advancement for the remainder of the 2021 fiscal year, which could also backlog this category in the 2022 fiscal year.

USCIS announced that applicants will need to use Chart A for filing adjustment of status applications. As such, Vietnam-born investors with priority dates earlier than Feb. 15, 2018, who are in the United States in valid visa status, are now able to file adjustment of status applications, and the National Visa Center will be able to initiate the immigrant visa process for those investors with the same priority dates who reside abroad. However, as a reminder, the scheduling of immigrant visa interviews and forwarding of files to the U.S. Consular Posts are subject to delays due to the ongoing operational reductions at consulates during the COVID-19 emergency.

The United States Citizenship and Immigration Services (USCIS) has reported significant delays for processing receipt notices due to a significant increase in filings at USCIS lockbox facilities, as well as facility capacity restrictions due to COVID-19. In particular, USCIS now confirms the following lockbox backlogs:

  • Dallas Lockbox: Currently intaking Employment-Based I-485 adjustment of applications and standalone cases filed around Oct. 29, 2020, and Oct. 30, 2020, with approximately 415,000 applications/petitions waiting to be receipted
  • Phoenix Lockbox: Currently intaking cases of all form types filed in early December 2020 with approximately 67,000 envelopes (or about 100,000 applications) waiting to be receipted

The CIS Ombudsman continues to assist individuals who have not received receipt notices 90 days after their application/petition was received at USCIS. However, the CIS Ombudsman’s Office recently stated that USCIS has confirmed it is unable to expedite the issuance of receipt notices at this time.

The delays at the Dallas Lockbox facility are affecting the receipting of Form I-829 Petitions by EB-5 investors. USCIS instructions require all Form I-829 Petitions to be filed with the Dallas Lockbox facility. For those EB-5 investors filing Form I-829 Petitions, continued delays are expected to receive the receipt notices. For investors requiring proof of ongoing status via the I-829 Receipt Notice, petitions should be filed as early as possible to the opening of the 90-day window prior to conditional permanent residence expiration. If urgent proof of status is required for EB-5 investors, petitioners should contact their attorney for additional guidance.

On the first day of his presidency, Joe Biden is sending to Congress his marker for an overhaul of the U.S. Immigration Laws. See link to summary here.

The Biden administration proposes broad changes that will impact immigration law across the board and will also have a significant impact on business immigration if ultimately passed by Congress.

The U.S. Citizenship Act will:

  • Provide a pathway to citizenship for many immigrants who have a destabilized status in the United States, including DACA recipients, essential workers, and TPS holders
  • Provide relief to employment and family immigrant visa backlogs
  • Address the causes of illegal migration

Some of the key details of the legislation that will be important in the business immigration context include:

Earned Permanent residence status and Path to Citizenship

  • Create a path to earn permanent residence and citizenship for certain undocumented individuals. Individuals would apply for legal status or green card lawful permanent resident status for five years and then for more permanent green card status after three years. They would need to pass background checks and pay taxes. Dreamers, TPS holders, and agricultural immigrant workers who meet specific requirements are eligible for green cards immediately under the legislation. Applicants must be physically present in the United States on or before Jan. 1, 2021.
  • Reducing Family Visa Backlogs. The proposal would clear backlogs, recapture unused visas, eliminating lengthy wait times.
  • The proposal would allow immigrants with approved family-sponsorship petitions to join family in the United States in a temporary status while they wait for green cards to become available.
  • Employment-Based immigrant backlogs. This proposal would clear employment-based visa backlogs, recapture unused visas, and eliminate per-country visa caps. The proposal would exempt graduates of U.S. universities with advanced STEM degrees from immigrant visa caps.
  • The proposal creates a pilot program to stimulate regional economic development, by giving DHS the authority to adjust immigrant visa numbers based on economic conditions

This bold legislative proposal is the new administration’s wish list for immigration reform. Congress will now need to take the initiative to craft an immigration bill that can pass both the Senate and the House. Congress has taken up the Comprehensive Immigration Reform challenge over the last two decades. The most recent piece of legislation was S. 744, passed during the Obama administration in 2013. The legislation was passed by the Senate but ultimately was never taken up the House of Representatives.

The complex issue of non-immigrant visas such as H-1B, L-1, H-2B, and any new visa category for the future flow of workers has not been addressed by the Biden proposal and will need to be part of the debate.

On July 14, 2020, President Trump issued an Executive Order regarding Hong Kong’s preferential immigrant visa chargeability. EB-5 investors who were born in Hong Kong will see their visa availability retrogress from current (C) to a backlog priority date of July 2015.

Previously, investors born in Hong Kong were not subject to the mainland China retrogression line under the Immigration Act of 1990 (IMACT 90). This act recognized Hong Kong as a separate foreign state under the U.S. rules for chargeability. Furthermore, Congress passed the United States-Hong Kong Policy Act of 1992, which confirmed Hong Kong as a separate foreign state but also gave the president authority to suspend treatment of Hong Kong as a separate foreign state if Hong Kong was not sufficiently independent to justify separate treatment.

The Executive Order terminates Hong Kong as a separate foreign state under the rules of chargeability, removes Hong Kong from the list of countries that may participate in the Diversity Visa Program, removes Hong Kong from the list of countries eligible for the Visa Waiver Program, and applies the visa availability schedule of China to those born in Hong Kong.

The Executive Order instructs all federal agencies to commence all appropriate actions to further the purposes of the order within 15 days. Unless Congress passes legislation to provide relief for those born in Hong Kong, or the president rescinds the Executive Order, individuals born in Hong Kong will be subject to the backlogs in the China preference categories.

Due to the coronavirus outbreak throughout China, a number of heavily infected Chinese cities, including Wuhan, are under quarantine, whereas many other parts of China have imposed certain types of travel restrictions in an attempt to limit the spread of the virus. On Jan. 28, 2020, the U.S. Consulate General of Hong Kong & Macau announced that it would operate at reduced staffing levels through Jan. 31, 2020, and all nonimmigrant and immigrant visa appointments scheduled for Jan. 29 have been cancelled.

On the same day, the U.S. Embassy & Consulates in mainland China announced that all U.S. Embassy and Consulates in the country will be closed on Jan. 30 and Jan. 31, 2020, due to the extension of the Lunar New Year Holiday to Feb. 2. As such, we expect those who are scheduled for visa appointments on these days will be notified of the cancellation of their appointments. We will monitor the developments and provide further updates regarding potential consulate closures and/or visa appointment cancellations when available.

Further, given the circumstances, many applicants for immigrant or nonimmigrant visas may not be able to attend their scheduled interviews, even if they are not cancelled, due to either travel restrictions or fear of being infected by the virus by visiting public places. For those clients who have scheduled immigrant visa or nonimmigrant visa interviews coming up, but are unable to attend because of the virus, please reach out to your attorney to reschedule the interviews.

Additionally, please note that pursuant to the February 2020 Visa Bulletin posted by the Department of State, in the EB-5 category, the final action date (Chart A) cut-off priority date for China mainland advanced to Dec. 1, 2014. While the visa bulletin has advanced recently, there is a risk that the final action dates may stop advancing or even retrogress in the coming months, given the volume of cases handled at USCIS, NVC, and U.S. consulates. The virus outbreak is likely to continue to cause delays in processing the visa applications and interview scheduling. The interview cancellations and rescheduling for existing investors and their dependents may contribute to a backlog in interview scheduling. If retrogression occurs, there is a risk that the priority dates of those with scheduled interviews may no longer be current at the time of their desired rescheduled date, and as such those applicants would need to wait for their priority dates to become current again before new interviews could be scheduled.

We will continue to monitor developments and provide updates as they become available.

Read more on U.S. immigration developments with respect to China.