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I-526 Processing Delays Expected to Continue into 2017

According to data recently supplied by USCIS, there are more than 20,000 I-526 petitions pending adjudication as of the end of March 2016. This is a massive backlog of cases. What are the implications of this backlog to investors, and will processing times improve?

What does this backlog mean for EB-5 investors?

The current I-526 backlog translates into long delays for I-526 decisions by USCIS. In other words, many if not most investors may wait close to or beyond 16 months for their I-526 cases to be approved.

This backlog of I-526 petitions is unprecedented in the short history of the EB-5 Investor Visa Program. If you contrast the current statistics with the data supplied for past fiscal years, the increase in the number of pending EB-5 cases at USCIS is striking. At the end of fiscal year 2015, there were more than 17,000 pending EB-5 petitions at USCIS. Fiscal year 2012 closed with just 5,000 pending EB-5 petitions in the hands of adjudicators. That is a massive increase in a compressed period of time.

USCIS simply isn’t properly staffed to manage this increase in the agency’s EB-5 caseload. The agency’s backlog has quadrupled since 2012. In light of this shift in I-526 backlogs, EB-5 investors need to be prepared to wait well beyond one year for a petition to even be assigned to an officer at USCIS.

What steps can I take to advocate for a review of my petition at USCIS?

USCIS does not appear to have any plans to implement a premium processing option for EB-5 petitions.

If you have an EB-5 petition pending beyond 16 months, speak with your immigration counsel on steps you might be able to take to ask USCIS for action on your case. Making inquiries to USCIS and requesting the services of the USCIS Ombudsman are both options, as is securing assistance in making an inquiry to the agency through a Member of Congress or a U.S. Senator.

If your project has had an exemplar petition approved through a regional center I-924/I-526 exemplar filing, your immigration counsel should remind USCIS that your I-526 petition is part of a group of petitions for which an exemplar has been granted by USCIS. This is an important fact that may help advance your case.

Also keep track of communications with USCIS. This can be very helpful when turning to the USCIS Ombudsman for assistance. Consult with counsel about whether your case merits extraordinary action through a mandamus lawsuit against USCIS, or whether you meet the criteria for expedited processing at USCIS. This relief is rarely granted. The prospects for success of a mandamus or expedite are driven by the facts in a specific case. You should work closely with counsel to explore these options before taking any action.

What’s the outlook for improved processing times for I-526 cases?

We expect that delays in I-526 processing will continue. Any improvement is not on the horizon. In fact, it is very likely that processing times will extend well beyond the 16-month processing time estimate published over the past several months by USCIS. For many EB-5 petitioners, the delay is already reaching the 24 month mark.

The best way to avoid a delay is to file a petition at the outset that fully and properly documents one’s source and path of funds for an EB-5 investment. Also, be braced for USCIS to request evidence, even if you think you have provided USCIS with the best evidence possible regarding the source and path of funds for your investment. The agency is under increased political pressure to combat fraud and money laundering in the EB-5 Program. Given the current backlogs and increased political pressure by Congress, we see processing times to continue to be delayed for EB-5 cases into 2017.

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Douglas Hauer is a Mintz attorney and noted authority on the EB-5 investor visa program, which gives developers a path for securing capital for real estate, hospitality, and infrastructure projects. He's an essential resource for companies looking for financing from offshore sources.