Although historically it has been doubted that USCIS adhered to consistent first-in-first-out (FIFO) processing of I-526 petitions, this year USCIS expressly announced that effective March 31, 2020, it would process I-526 petitions on a new “visa availability” approach, i.e. EB-5 investors from countries impacted by retrogression would not have their I-526 petitions reviewed until a visa is available or soon to be available for each investor. In other words, USCIS will consider the EB-5 investor’s country of birth and check the monthly Visa Bulletin to determine if the investor’s Priority Date is current or soon to be current.

The new I-526 review process affects all I-526 petitions pending adjudication as of March 31, 2020.

A new visa availability approach essentially results in country-specific processing times for the EB-5 I-526 Petition. USCIS stated that it would update the USCIS Processing Times page for EB-5 investors to check when they can expect processing of their petition, but as of the date of this blog, no changes have been made.

Originally, under a FIFO approach, USCIS would process I-526 petitions generally in the order they were received. USCIS is shifting focus from petitions from oversubscribed countries, traditionally China, Vietnam and India and effectively prioritizing I-526 adjudication for EB-5 Investors outside of China and Vietnam (India is current as of the July Visa Bulletin).

Although EB-5 investors facing extended EB-5 visa backlogs must wait longer for their EB-5 I-526 petitions to be reviewed, they will benefit from lower risk of their children “aging out” of the EB-5 process. Under the Child Status Protection Act (CSPA), a child’s age is calculated by subtracting the number of days the I-526 petition was pending with USCIS, i.e. from the date of receipt to the date of approval, from the actual age of the child applicant on the date the visa becomes available. Under a FIFO approach, if the I-526 petition were approved, but a visa would not be available for several years, the risk of a child beneficiary aging out was high. Extending the date of approval until a visa is available substantially reduces that risk.

To learn more about the new visa availability approach to the EB-5 I-526 petition and about the EB-5 process generally, contact Behring and schedule a free consultation with a member of our team. Behring hosts an expansive library of EB-5 resources available for download as well as FAQs and blogs to provide the best information to prepare you for your EB-5 investment.