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On March 13, 2020 USCIS held an EB-5 Stakeholder agreement via telephone to discuss the recent changes to I-526 processing procedures and other updates to the program as part of the regularly scheduled stakeholder engagement schedule.

The main topic of discussion was the change in I-526 processing procedures, going from “first in first out” for all I-526 petitions received, to an “Inventory Management Approach” that considers I-526 petitions from petitioners with current or soon-to-be-current visa availability first.

This way, those subject to retrogression (China, Vietnam) would have their I-526 petitions reviewed and approved after those from the rest of the world who can immediately file for a green card.

This way, the hope is that processing times will decrease for all non-Chinese and Vietnamese investors, while the Chinese and Vietnamese investors, by keeping their I-526 petitions in processing, would be free from their children aging out (as time spent in I-526 processing time is not counted against them like time spent between I-526 approval and green card approval would be).

USCIS also stated that the new approach better aligns with the Congressional intent of visa allocation, is a better use of the annual allocation of visas, and aligns with USCIS operations for other processes, like the I-130. USCIS expects new processing times reflecting the changes to go into effect soon after the change on March 31 though, of course, with the advent of the Coronavirus era this appears unlikely.

Charles Oppenheim from the Department of State was on hand to weigh in on the new procedure, and confirmed availability of visas themselves should remain the same, at least through the next 12 to 18 months. In addition, unused visa numbers will still be allocated to retrogressed countries. Next, USCIS provided operational updates, including how the Investor Program Office (IPO) has taken significant steps toward more consistent adjudication and training for adjudicators, increased coordination with law enforcement, confirmed what many of us have noticed: case completion did decrease as a result of these efforts.

However, USCIS noted that more recent data has indicated case completion rates should increase and processing times should decrease as a result of these efforts, with actual data coming in the next several months.

On the Regional Center front, USCIS announced that 100 EB-5 Regional Centers failed to file the required annual report form I-924A, with many being rejected because they were sent to the IPO instead of the California Service Center.

USCIS reminded stakeholders that I-924A forms should be complete, accurate, and explain any inconsistencies between the form and previous filings.

In addition, USCIS noted that many EB-5 Regional Centers failed to follow specific instructions such as providing government issued photo ID for all principals.

Regarding Legislation, USCIS has been following bipartisan bills for EB-5 integrity measures, especially those that promote more background checks and site visits, often requiring additional fees.

USCIS answered many questions, both submitted before the call and taken live by telephone.

Highlights from the Q&A include:

  • USCIS will review the visa availability monthly along with the Visa Bulletin.
  • Expedite I-526 will continue to be processed in line with the standard guidelines.
  • Cross-chargability will continue to be reviewed on a case by case basis
  • The IPO now has 240 personnel
  • USCIS is looking into separating processing times based on retrogressed and available countries
  • USCIS will rely on the Dates of Filing chart (Chart B) from the visa bulletin to determine availability

Notably, USCIS expressed appreciation for questions regarding the discrepancy between increased staff, decreased new filings, and new training, with drastically lower output and longer processing times, but declined to comment on how that will be addressed. With these changes it is more important than ever for EB-5 Investors and EB-5 Regional Center and Project Developers to work with experienced EB-5 attorneys.

Salvatore Picataggio

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