USCIS updates their approach to adjudicating EB-5

Darren Silver

USCIS has updated their approach to adjudicating the I-526 / EB-5 immigrant visa petitions.

By

Darren Silver

Partner. Darren Silver & Associates, LLP

dsilver@darrensilver.com

In a July 18, 2023 announcement USCIS explained that they have decided to adjudicate the I-526 applications under a new system. According to the announcement:

“The purpose of updating the visa availability approach is to enable USCIS to increase productivity and more efficiently process Form I-526 petitions”.

See : https://www.uscis.gov/working-in-the-united-states/permanent-workers/employment-based-immigration-fifth-preference-eb-5/update-to-visa-availability-approach-for-form-i-526

USCIS has described that they will start adjudicating I-526 petitions under a three prong or “queue” process:

  • The first queue contains Form I-526 petitions where a visa is not yet available and not soon to be available and is ordered first-in, first-out.  

–This likely contains the majority of the applications in that many backlogged applications are coming from China, or India. These two countries are historically retrogressed. As such, it appears that USCIS will continue to hold these cases until visa numbers are available.

  • The second queue contains petitions related to projects that IPO has not previously reviewed and have a visa immediately available or soon to be available. IPO reviews projects in the second queue in order from oldest to newest.

While this second queue will not have an instant effect on adjudication, it is very clear that USCIS is moving in the right direction. As it is extremely likely that projects will be reviewed in a timely manner and as this occurs these applications will then move forward to the third queue.

  • The third queue contains Form I-526 petitions that have an available (or soon to be available) visa and either a reviewed project or “non-pooled” (single investor) standalone project. This queue is organized by receipt date of the Form I-526 petition (from oldest to newest). This is the queue from which Form I-526 petitions are assigned to officers for adjudication. Form I-526 petitions have generally been assigned to officers in first-in, first-out order.

Here we should see a huge improvement in adjudication as us gas is basing their adjudication on pre reviewed project documentation. This methodology should greatly increase the adjudication timing of the I-526 petitions.

-Importantly, USCIS has announced that this new efficiency of processing will for now, only apply to I-526 applications that were filed with filing dates on or before Nov. 30, 2019.

It is still unknown whether this new adjudication methodology will indeed increase efficiency and speed of I-526 petitions. However, at least USCIS is moving in the right direction.