US Citizenship and Immigration Services has announced a shift from first-in-first-out processing of EB-5 I-526 petitions to a visa availability approach.
This change is set to come into effect from March 31, depending on the impact of shutdowns due to coronavirus.
Understanding this Change
Currently, USCIS processes I-526 petitions in the order in which they were filed irrespective of the nationality of the EB-5 investor.
From March 31, I-526 petitions from countries without an EB-5 visa backlog will be processed first followed by petitions filed by investors from backlogged countries, namely China, Vietnam and India.
Understanding the EB-5 Backlog
Every year, the US issues a total of 10,000 EB-5 visas, for investors as well as their family members, with a per-country limit of 7 per cent or approximately 700 visas.
A country not utilizing its quota has an excess while countries exceeding this quota has a visa backlog. The backlog is filled by distributing the unutilized quota to applicants from backlogged countries.
The net result of this process was EB-5 petitions from backlogged countries, due to sheer volume of applications, were processed faster than petitions from countries with unutilized quotas.
Implications of the New Rule
With the new decision applicable to new as well as pending applications, EB-5 investors from China, India, and Vietnam will have to wait longer for I-526 adjudication and approval.
Applicants from these countries already face a long wait between I-526 approval and availability of the visa when their priority date becomes current.
Under the new processing regime, the total waiting period between filing of the I-526 petition and issue of the conditional green card is set to get significantly longer.
The new rule has been introduced to bring the EB-5 processing system in line with the congressional intent for enacting the EB-5 program and to make the program’s administration fairer.
The general processing time for an I-526 petition is between 32 and 49 months. After this change, applicants from the three countries with EB-5 backlog will face a longer wait for I-526 adjudication.
After India hit the backlog, it was estimated that an Indian investor would have to wait around eight to nine years between filing an I-526 petition and receiving the conditional green card. While there are many other variables involved, the new rule is certainly not going to shorten this period.
Indian EB-5 Demand Unlikely to Dip
This new rule follows the recent increase in minimum EB-5 investments from $1 million and $500,000 to $1.8 million and $1 million respectively. Yet, despite these negative developments, EB-5 demand among Indian investors is unlikely to fall.
A longer waiting period may not actually be a bad thing for Indian investors with children likely to ‘age out’ of the EB-5 visa soon. The current EB-5 process freezes the child’s age upon filing of the I-526 petition until it is processed and adjudicated. So, at least for these investors, a longer wait may prove to be beneficial.
The waiting period for EB-1, EB-2, and EB-3 category green cards runs into decades, which makes the EB-5 visa the fastest route to permanent residence in the US.
Further, unlike the H-1B route, the EB-5 visa is, at least for India candidates, a straightforward and controversy-free process for acquiring a green card.
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