2020 and 2021 have been strenuous years for prospective and ongoing EB-5 applicants. First because the pandemic disrupted processing, second because the regional center program was not reauthorized (leaving tens of thousands of regional center investors in the lurch, at least for now), and third because the Investor Program Office (IPO) appears to be growing less productive.
The IPO, the bureau within US Citizenship and Immigration Services (USCIS) that handles EB-5 applications, certainly has its work cut out; nearly 13,000 I-526 applications were listed as "pending" by the end of June this year. In Q3 of the 2021 fiscal year (which ended on June 30th), the USCIS processed only 727 I-526 applications. That represents a third consecutive quarter of declining I-526 adjudication numbers. These figures are likely to remain suppressed as long as the regional center program remains closed.
More perplexing than falling productivity on the I-526 front, however, is the drop in I-826 processing.
The IPO decides on three types of forms:
- I-526 petitions (the initial EB application)
- I-829 petitions (removal of conditions)
- I-924 (application from developers for regional center designation)
Because the regional center remains closed, the IPO cannot adjudicate on I-526 petitions that pertain to a regional center investment (the vast majority of I-526s). Nor can it give out any more I-924 approvals (you can't be approved as a regional center if there is no regional center program).
What remains for the IPO to process, then, are direct EB-5 applications and I-826 petitions.
Why, then, are I-829 adjudications slowing down? As Suzanne Lazicki points out in her EB-5 blog Lucid Text, the 232 employees of the IPO have little else to do but process I-829s and direct EB-5 applications:
What are these people doing, especially now during the regional center program lapse when USCIS decided that “we will not act on any pending petition or application of these form types that is dependent on the lapsed statutory authority.” Are IPO staff busy making progress with the direct EB-5 inventory and I-829, or are they doing something else in or out of the office?
Surely we must see more I-829 progress soon, unless EB-5-fee-funded resources are not being used to adjudicate EB-5 forms.
Lazicki also notes that, at its peak productivity, in the summer of 2017, the IPO processed some 450 I-829s a month, indicating what the IPO can do if it sets it mind to it. They should also have all the resources necessary to provide timely processing services because the USCIS' work is funded by fees that the agency is free to set at whatever level is needed to provide adequate service.
There’s just no excuse, from a business planning perspective, to not be providing adequate service for I-829.
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Christian Henrik Nesheim is the founder and editor of Investment Migration Insider, the #1 magazine - online or offline - for residency and citizenship by investment. He is an internationally recognized expert, speaker, documentary producer, and writer on the subject of investment migration, whose work is cited in the Economist, Bloomberg, Fortune, Forbes, Newsweek, and Business Insider. Norwegian by birth, Christian has spent the last 16 years in the United States, China, Spain, and Portugal.