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USCIS Adjusts Processing Method to Manage EB-5 Immigrant Investor Visa Petition Backlogs

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Pasricha & Patel

USCIS has announced that starting on March 31, 2020, it will change the way it processes the Form I-526, Immigrant Petition by Alien Investor, from a first-in, first-out basis, to a visa availability approach. USCIS explains that this new approach is to prioritize petitions filed by individuals from countries where immigrant visas are currently available (or soon become available), which would increase fairness, and allow those qualified EB-5 petitioners from traditionally underrepresented countries to have their petitions approved more quickly in order to receive consideration for an immigrant visa. This process change does not create any legally binding rights, nor does it change any substantive requirements for the EB-5 petition.

USCIS also explains this operational change is consistent with the USCIS’s already-implemented processing of Form I-130 family-based petitions (those in the preference categories). The reasoning here is that applicants from countries where visas are immediately available (or will soon become available) will be better able to use their annual per-country allocation of EB-5 visas. This process change will apply to petitions pending as of the effective date of the change, which will be starting on March 31, 2020.

It should be noted that the process change will impact petitioners whose EB-5 visa wait times are slowed by per country limitations, mainly, China, and India, and Vietnam- where all three (3) countries have EB-5 visa backlogs lasting at least two (2) or more years. But it is not clear if this process change will significantly help the underrepresented countries, because all of those countries already have ‘Current’ or ‘Available’ visas as per the monthly-published visa bulletin. The true test will be seeing how those petitions are processed after March 2020.

Should the reader have any further questions about this process change or the EB-5 immigrant investor visa program in general, we encourage you to also contact our office to schedule a consultation for further discussions.