USCIS Re-Prioritizes the EB-5 Adjudication Process: An Analysis!



2020 began with a series of implementations from USCIS, a drastic change from the inaction seen in early through the tail end of 2019. The new Regulations came into effect on November 21, 2019, followed by the Supreme Court stay on the Inadmissibility on Public Charge Grounds final rule (effective February 24, 2020), and the most surprisingly, a process change to the adjudication of I-526 petitions.

The Policy Change:

On January 29, 2020, USCIS announced the process change from a “first-in, first-out basis to a visa availability approach”. This essentially means that USCIS will prioritize petitions connected to individuals from countries where visas are currently available, and hold adjudication of petitions in countries that are backlogged. Deputy Director Mark Koumans stated, “[t]his new approach increases fairness, allowing qualified EB-5 petitioners from traditionally underrepresented countries to have their petitions approved in a more timely fashion to receive consideration for a visa.” This is a similar approach to the agency’s processing of Form I-130, Petition for Alien Relative. Incidentally, the IPO announced that they were leaning towards this policy back in 2017 at a Stakeholder’s event. [1] This was pursuant to several requests from immigration lawyers to obtain some relief for Chinese children that were aging out.

An Expedient Policy or a Double-Edged Sword?

The policy is certainly beneficial for EB-5 petitioners from countries that are not in backlog. It allows the agency to adjudicate petitions where the visa is immediately available, or soon available, and countries will now be better able to use the annual per-country allocation of EB-5 visas. Individuals from countries that are not backlogged can expect faster adjudications times.

For investors from the backlogged countries of China, Vietnam and India, the move could be a double-edged sword. As processing times will be longer for petitioners of this country, the delay poses advantageous to potential age-out children. This is because a child’s age begins to run from the date the I-526 petition is approved until a visa is available. As long as the I-526 petition is pending, the child’s age will remain as is (“frozen”) from the date the petition was filed with USCIS, thereby protecting aged-out children.

However, the experts have been quick with pointing out the concerns with the new approach. Petitions held in abeyance may be exposed to increased scrutiny from USCIS. With the longer processing times, we could potentially see more denials as there is a higher risk for project failures, RC terminations, or mismanagement of funds. Issues can arise with USCIS using the incorrect burden of proof going beyond the balance of probabilities or going beyond the scope of what is required from an I-526 petition, and instead, adjudicating the petitions based on the I-829 requirements. Suzanne Lazicki in her excellent blog, points out that the only way we can correctly interpret the change is to understand the composition of the I-526 backlog, by priority date and country of origin. Suzanne points out that the IPO can, “at any time, print out and publish a report of this data. IPO did this once, in October 2018, then deleted the report. IPO now refuses to disclose current data for the currently-pending I-526 itemized by petitioner country and priority date month/year. Why? There are obvious wicked reasons – intent to obscure processing, or gratuitous naysaying – and no good reason that I can think of.” [2]

It can be argued that the most equitable way forward would be for USCIS to grant permanent resident cards rather than conditional resident cards for petitions pending over 5 years, similar to the marriage-based petitions.

Further, there are a number of unanswered questions, such as the methodology USCIS will use to determine their adjudications. Will they simply check the passports or the birth certificates? An applicant with an Indian passport could have been born in a country that would not allow citizenship, such as the UAE. What if a petitioner from a backlogged country has a spouse from a non-backlogged country and thus would otherwise have been eligible for cross chargeability? Will the IPO consider other priorities such as an approved expedite request? Most importantly, it is absolutely imperative that USCIS adjudicate cases in a reasonable manner by according to the visa bulletin priority dates based on Chart B (“Dates for Filing), rather than Chart A (“Final Action Date”). This will continue to allow petitioners in the U.S. to obtain employment authorization and the travel document while waiting to adjust status.

The new visa availability approached will be implemented on March 31, 2020 and applies to new and pending petitions as of the effective date. Stay tuned as USCIS will hold a public engagement on March 13th at 11 am EST to provide the public with further clarity on the changes to the management of I-526 petitions.

About The Author

Mona Shah, Esq. Born in the UK, Mona graduated from the University of Northumbria in England (UK) in 1990. Mona was admitted as a Solicitor of the Supreme Court of England & Wales in 1993 and was admitted to the New York Bar and the United States Federal Bar in 1997. While in England, Mona trained with various firms before her appointment as a Crown Prosecutor with the British Crown Prosecution Service. After moving to New York, she established Mona Shah & Associates Global (MSA Global) in 1997. Mona has over 26 years of legal experience. A part-time adjunct professor at Baruch College, CUNY University, Mona is a published author, a Lexis Practice Advisor and co-editor of the Trade & Invest Magazine (BLS Media). Mona regularly speaks worldwide, interviewed by mainstream news channels, including Fox Business News, Al Jazeera and quoted in major newspapers, including the New York Times. Mona is a member of the Presidential Advisory Board of IIUSA, and hosts the first EB-5 podcast series (88+ episodes).
The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.