I-526 and I-829 Petition Processing Slows to Crawl in FY2019
In March 2019, we predicted I-526 processing times would decrease to six months based on the decrease in overall I-526 filings, increase in the number of petitions adjudicated in FY2017, and increase in resources dedicated to USCIS adjudication. We speculated that project petition quality increased as the industry consolidated to only the highest quality regional centers with deep experience in preparing quality filing and that the quality of investor petitions being adjudicated today are superior than those that caused the massive backlog from 2015 and 2016.
With the release of FY2019 Q2 EB-5 Petition Processing numbers it is evident that our estimate was incorrect. IPO processing volume has fallen 60% from FY2019 Q1 to FY2019 Q2, after an already disappointing 37% decrease from the previous quarter. In FY2018 Q2, USCIS had processed 4000+ I-526 petitions, but in FY2019 Q2 IPO had processed less than 1000 I-526 petitions.
Adding to the confusion, USCIS has not in recent times held an EB-5 stakeholder meeting, so there is little insight into what is happening inside of the “black box” of USCIS. There are a few possible explanations for this reduction in processing volume:
- Reduction in Staff at IPO
- Increase in time spent processing per petition
- and/or a decision to artificially limit adjudication output volume
Currently, there is no evidence to suggest that IPO has lost resources. As processing volume determines processing times, if IPO is processing at 25% of the volume of the petitions per quarter compared to last year, then the existing backlog will reduce more slowly than we originally thought, and in turn processing times will increase. USCIS is now reporting an estimated processing time of 25.5 to 45 months for I-526 petitions.
While it is certainly disheartening to see processing times have increased so dramatically, there are two key items to keep in mind about the current I-526 processing time estimates:
1) The Listed I-526 Processing Time Estimated Range Does Not Necessarily Reflect an Estimate of Average Processing Time
The only thing we can definitively say based on the updated Processing Time Estimate is that the USCIS Report changed, we can not definitely say that actual processing times have changed. In past I-526 processing time report, the spread between the minimum and maximum estimated time range was 6 months, but as of the most recent update that spread has grown to nearly 20 months. Some have speculated that USCIS may simply be including processing time outliers in their estimated range to redefine what can be considered “normal” processing time. By adding several years to the estimate of what is considered “outside of normal processing time”, USCIS reduces the number of petitioners who can reach out with inquiries about pending petitions which have exceeded the processing time window posted. This could explain why the estimated range has dramatically increased, even if in reality processing time has not changed.
For a bit of anecdotal evidence, Behring Regional Center had a wave of I-526 approvals in November and December of 2018 where the average investor processing time was only 348 days, despite USCIS reporting an estimated range of 20.5 to 26.5 months during this time.
2) For Investors from Retrogressed Countries, Longer I-526 Processing Times Won’t Hurt You, and in Fact May Actually Be A Good Thing
It may seem counter intuitive to some, but longer I-526 processing times do not necessarily hurt EB-5 investors from retrogressed countries, and longer I-526 processing times can actually provide some benefits to investors from retrogressed countries.
For example, if you are an EB-5 investor who was born in India, if I-526 processing time increases from 20 months to 40 months, but it will take 110+ months to have a visa number available based on your priority date, this change has not actually materially affected your overall amount of time spent waiting for conditional green card availability. Despite the I-526 processing time doubling, your net time spent waiting for a visa number to become available remains unchanged, because there is a limited number of visas that can be issued each year and it will take at least 110 months for your priority date to become current regardless of how quickly your I-526 was approved. Your priority date, or your spot in line for a visa number, is entirely based on when you originally filed an I-526, not when your petition was approved.
The most beneficial aspect of increased processing times is the ability maintain your child’s status as a dependent beneficiary for a longer period of time, via the Child Status Protection Act.
We have written a detailed blog post about Retrogression and the Child Status Protection, but in short, the Child Status Protection Act (CSPA) was enacted in order to protect children of EB-5 petitioners against long petition processing times. The U.S. Immigration and Nationality Act defines a “child” as an unmarried individual under the age of 21. Once a child turns 21, the child is no longer eligible for immigration benefits based on the relationship to the parent. This is known as “aging out. A child’s age essentially “freezes” on the date the I-526 petition is filed until the date the I-526 petition is approved, and the time the I-526 petition was pending is subtracted from the child’s age at the time of I-526 approval. This helps protect the child of an EB-5 investor from aging out as long as the I-526 petition was filed before their 21st birthday.
The complication arises from the fact that EB-5 petitioners are unable to file for Adjustment of Status or Consular Processing until a visa number is available, and during the time between when the EB-5 petitioner has their I-526 petition approved and the time a visa number becomes available, their dependent children’s age “unfreezes” and they may age out before a visa number becomes available. When I-526 processing times increase, this also increases the amount of time Retrogressed investors’ children remain protected by the Child Status Protection Act.
Information and analysis in this post has been truncated and adapted from from the following articles:
“Petition Processing Times Report Change, RC List Updates”, originally posted by Suzanne Lazicki on 28 May 2019 at Lucidtext.com (Article Link: https://blog.lucidtext.com/2019/05/28/petition-processing-times-report-change-rc-list-updates/)
“FY2019 Q2 EB-5 Petition Processing Report”, originally posted by Suzanne Lazicki on 26 June 2019 at Lucidtext.com (Article Link: https://blog.lucidtext.com/2018/10/25/pending-i-526-by-country-as-of-10-2018/).