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I-526 Processing Time Updates – February 2020 Visa Bulletin

January 22nd, 2020 Kyle Behring

I-526 Processing Time Updates – February 2020 Visa Bulletin

The February 2020 Visa bulletin has been posted on the USCIS website. The Final Action Date for India is September 1st, 2018, which is a four month improvement from the Final Action Date  of May 1, 2018 reported in the January 2020 visa bulletin.  Many Behring Co. investors have reached out for clarification regarding Final Action Dates and for our comments on USCIS I-526 processing times and approval rates.

What Does this Jump In Final Action Dates Mean?

 

A Final Action Date represents the last EB-5 petitioner I-526 priority date which may apply for adjustment of status or Consular Processing during the following month. In February 2020, EB-5 petitioners with an approved I-526 petition and an I-526 priority date prior to September 1st, 2018, may apply for Adjustment of Status or Consular Processing.

As many Indian EB-5 petitioners are likely aware, India currently has  approximately 5500 individuals in queue for EB-5 visas.  It is important to note that I-526 processing times at USCIS have been historically slow since 2019.  As a result, only a fraction of the queued Indian applications have reached the visa stage (Adjustment of Status/Consular Processing); the vast majority of Indian EB-5 petitioners are still awaiting I-526 adjudication.

The large jump in Final Action Dates between visa bulletins does not necessarily mean that the line is becoming shorter or that petitions being processed faster. The Final Action Dates are moving more rapidly because there is a bottleneck at the I-526 adjudication stage causing an artificially low demand at the visa application stage. In fact, we expect the Final Action Date for India to retrogress further back to an earlier Final Action Date once USCIS begins to adjudicate more Indian I-526 filings.

USCIS Processing Update and Estimating Wait Times

 

USCIS currently lists an I-526 processing time range of 32.5 to 49.5 months (I-526 priority dates falling between 2015 and 2017). The visa bulletin does not provide any indication of the volume of current I-526 adjudications. As many EB-5 petitioners are aware, USCIS indicates that it processes petitions in the order which they are received; however, this is not the case in practice nor in what we have experienced.  EB-5 petitioners have a huge disparity in processing times, and the order in which petitions are being processed is seemingly random, with some investors receiving adjudication in under one year, and some investors pending for multiple years without notification. This means that EB-5 petitioners are not reaching the visa stage in order by their priority date, which has resulted in some EB-5 petitioners with 2018 priority dates receiving visas despite the fact that there are EB-5 petitioners with earlier priority dates still awaiting I-526 adjudication.

I-526 Processing Times February 2020
I-526 Processing Times February 2020

Per the I-526s Pending By Country of Birth (October 2018) data spreadsheet, at least 525 Indian EB-5 petitioners filed I-526 petitions between January and August 2018. Assuming an average of 2.5 visas issued per I-526 filing, this would indicate there will be approximately 1,300 visa applications from this time range. As a reminder, USCIS caps the number of visas that can be issued to a single country in a single year to about 700 visas, meaning it would take about two years to issue 1,300 visas.

This makes it abundantly clear that the jump in the visa bulletin is indicative of slow I-526 processing time, which has resulted in fewer Indian EB-5 petitioners reaching the visa stage. If those petitioners had their I-526s adjudicated more quickly, the visa bulletin would regress to a point to provide time needed to issue those 1300 visas (in addition to the 781 Indian EB-5 petitioners with pre-2018 priority dates which are still pending as of the end of 2018.

Behring Co.’s Madison Park Project Fund

 

Our internal data confirms there is a vast disparity in processing times and the order in which I-526 petitions have been received by USCIS. The Madison Park Project was I-526 exemplar approved in March 2018, and from the time of exemplar approval we have received notice that 12 out of 35 total investors have received I-526 approval. Some investors received I-526 approval in under 12 months, while others have been waiting for more than 2 years without USCIS adjudication.

Calculate Your Estimated Wait Time

 

For Indian EB-5 petitioners with pre-2019 priority dates, using the I-526s Pending By Country of Birth data spreadsheet you can estimate the approximate number of people remaining  who have priority to get a visa before you do — assuming they can reach the visa stage:

  • Sum the number of pending I-526 petitions with priority dates before yours.
  • Multiply by the estimated the number of visa applications associated with those I-526 petitions (number of dependents seeking immigration benefits).
  • Subtract the number of individuals who could possibly have received visas since then, considering the number of I-526 adjudicated worldwide and number of visas issued to Indians since October 2018

By dividing the result by 700, you can find your estimated wait time, if petitions were in fact processed in a First-in First-Out order. Unfortunately, USCIS has NOT been processing petitions in a First-In First-Out order, and this is where the disconnect between USCIS processing time reports and the visa bulletin is evident.

Assuming petitions continue to be processed out of order, some Indian EB-5 petitioners will receive their visa earlier than anticipated, and others will receive their visa unfairly late. While individual outcomes will remain unpredictable, what is certain is that the visa bulletin will continue to move forward and backward, depending on who reaches the visa stage and when.

Indian I-526 Petitions Pending (October 2018)
Indian I-526 Petitions Pending (October 2018)

Data Source:

USCIS (file previously posted at https://www.uscis.gov/sites/default/files/USCIS/Working%20in%20the%20US/i526list.pdf, now saved at https://www.dropbox.com/s/zxkmwye1yr1100t/i526list.pdf?dl=0.)

Citations:

Data and analysis presented in this article has been adapted from EB-5 Expert and Business Plan Writer Suzanne Lazicki’s blog, Lucid Text, article “2/2020 Visa Bulletin India FAD”, posted on January 17th, 2020. Read the original article here: https://blog.lucidtext.com/2020/01/17/2-2020-visa-bulletin-india-fad/

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