EB-5 Alert: Major Change to Processing of EB-5 Petitions, by Lawmaks

On 1/29/2020 USCIS announced changing its processing protocol for EB-5 processing which translates to good news for some countries such as Pakistan, Ethiopia and Egypt. Currently the operational approach is on a “first-in, first out” basis, where the applications are reviewed based on when each petition is filed.

However, as of March 31, 2020, this approach will change to “visa availability” approach. This means that the agency will adjudicate based on visa-availability, thus prioritizing applications from countries with no retrogression issues. For example, USCIS will give priority to applications from countries such as Pakistan, Ethiopia and Egypt where there is not visa retrogression issues, and will hold off on adjudicating applicants from China, Vietnam or India where there are overwhelmingly more applicants, and where visas will not be available for several years.

Therefore priority will be given to petitions from countries where visas are immediately available, allowing said countries to better use their annual per-country allocation of EB-5 visas. What this means is that applicants from underrepresented countries can expect their petitions to be adjudicated faster than previously expected.

USCIS will hold a public engagement on March 13, 2020 to answer questions from the public, with the anticipated implementation of the new “visa availability” approach on March 30, 2020.

The new approach is in line with existing processing rules for I-130 (family basis categories) and more in line with congressional intent for the EB-5 Immigrant Investor Program, thus promoting fairness in the administration of the program.