A Closer Look at Recent USCIS FOIA Releases
In recent months, stakeholders across the EB-5 industry have carefully reviewed newly released USCIS data obtained through Freedom of Information Act (FOIA) requests. One question has emerged with increasing frequency:
Why does the Infrastructure set-aside category show little or no I-526E filing data in recent FOIA data releases?
This question is particularly important because Infrastructure is one of the three visa set-aside categories created under the EB-5 Reform and Integrity Act of 2022 (RIA), alongside Rural and High Unemployment Area (HUA) projects.
At Behring, we believe it’s important to address this topic thoughtfully and respectfully, recognizing both the complexity of USCIS data systems and the significance of Infrastructure projects in the EB-5 ecosystem.
Understanding the Infrastructure Category Under the RIA
The EB-5 Reform and Integrity Act introduced reserved visa categories to promote targeted economic impact:
- Rural (20%)
- High Unemployment Area (10%)
- Infrastructure (2%)
The Infrastructure category is unique. Under the statute, qualifying projects must involve public works owned and administered by a governmental entity, such as transportation, utilities, or other public infrastructure.
Because this is a new statutory category created in 2022, USCIS had to implement new internal classification systems to track these filings.
Why Might FOIA Data Show “Zero” Infrastructure Filings?
Several explanations are possible. Importantly, none of them necessarily mean that Infrastructure filings do not exist.
- Data Extraction and Coding Limitations
FOIA responses are generated from USCIS internal databases. If the database fields used in the query do not perfectly align with how Infrastructure petitions are coded internally, the output could show zero entries — even if filings have occurred.
This would be a technical reporting issue rather than a substantive absence of filings.
- New Category Implementation Lag
Infrastructure is the smallest visa allocation (2%) and also the newest structural category. Implementing new case-type tags, data fields, and reporting filters across a national adjudicatory agency is complex.
It is reasonable to expect that reporting systems may take time to fully align with statutory categories introduced by the RIA.
- Timing of Filings and Adjudications
Infrastructure projects tend to be fewer in number compared to Rural or HUA offerings. If filings are limited and adjudications have not yet progressed far enough to generate reportable data events, FOIA snapshots may appear sparse.
FOIA data reflects what exists in a system at a specific point in time — not necessarily the full real-world activity underway.
- Reporting vs. Public Dashboards
USCIS’s public statistical releases do not currently break down I-526E filings by each set-aside category in a detailed manner. As a result, stakeholders rely on FOIA responses for more granular insights. If those responses depend on narrow query parameters, gaps can occur.
Why This Matters
The Infrastructure category serves a distinct public policy goal: encouraging EB-5 capital to support essential public works.
For investors, transparency around visa usage and filing volume is critical in evaluating risk and availability within a reserved category.
For regional centers and project developers, clarity supports compliance, planning, and responsible communication.
At the same time, it is important to approach this topic with perspective. USCIS administers a highly complex immigration system under evolving statutory mandates. Implementing the RIA required sweeping regulatory, compliance, and systems changes — all while managing significant adjudication workloads.
Temporary reporting gaps should not automatically be interpreted as programmatic issues
Infrastructure Projects in Practice
Infrastructure under the RIA requires:
- Public ownership or administration
- Governmental oversight
- Qualification as public works
Behring’s CIVIC project is an example of how the Infrastructure category can function in practice — aligning EB-5 capital with public-use facilities and long-term community benefit in compliance with statutory requirements.
Projects structured under this category are necessarily more specialized, which naturally results in fewer offerings and, correspondingly, potentially lower filing volume.
What to Expect Going Forward
As the post-RIA EB-5 program continues to mature, we expect:
- Greater clarity in USCIS statistical reporting
- More refined data extraction in FOIA responses
- Increased adjudication activity across all set-aside categories
The Infrastructure category represents a small percentage of annual visa allocation, but its long-term importance should not be underestimated.
Final Thoughts
The absence of Infrastructure data in recent FOIA releases likely reflects reporting mechanics rather than the absence of real-world activity.
As always, transparency, patience, and careful interpretation of data are essential.
At Behring, we remain committed to:
- Compliance with statutory requirements
- Respectful engagement with USCIS
- Clear communication with investors and industry stakeholders
The EB-5 program continues to evolve under the RIA framework. Infrastructure is part of that evolution — and, over time, the data will tell a more complete story.
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