EB-5 expert Suzanne Lazicki has analyzed receipt and adjudication data from Q1 FY 2019 that answers some important questions — at least for that quarter. How close are USCIS reported times to actual I-526 and I-829 processing times? Reality was generally better — but with more cases outside of the far end of the reported range. And enough country differences proved that EB-5 processing was not simply “first in, first out.”
The USCIS Electronic Reading Room offers access to information under the Freedom of Information Act (FOIA); it’s here where Suzanne Lazicki has recently found files documenting all the I-526 and I-829 receipts and adjudications made from October to December, 2018 (FY 2019 Q1).
She points out that this data allows us to draw some answers — if only for that quarter — to questions that have concerned the EB-5 industry: Are USCIS reported processing times different than actual processing times? Does adjudication change according to the country of the petitioner? Do approval rates differ by country? Where are I-526 receipts now coming from?
Processing times: estimated vs. actual
The big EB5 news was that in FY 2018 petition processing, with a peak in Q3 and a slight dip in Q4, was much more efficient than the processing times in FY 2019. Q1 FY 2019 was a transitional period: not as efficient as FY 2018, but far better than the subsequent FY 2019 quarters. Lazicki analyses what the FY 2019 Q1 numbers tell us.
Lazicki also reminds us that in December 2018, a USCIS report provided the “Estimated Time Range” for the two petition types.
It is important to note that when USCIS published these time ranges, they stated this: “The first number is the time it takes to complete 50% of the cases (the median). The second number is the time it takes to complete 93% of the cases.” [Note that “median” means the middle number in a range, and does not mean average.]
Estimated Processing Times
I-526 processing 20.5-26 months
I-829 processing 30-39 months
Reality painted a, generally, more efficient picture: from October to November 2018, 64% of adjudicated I-526 EB5 Investment petitions were adjudicated in less than 20.5 months, the estimated median of the range. During that period, 79% of adjudicated I-829 petitions were processed in less than 27.5 months, two and a half months less than the median of the estimated range.
Average Actual processing Times
I-526 processing 17.5 months
I-829 processing 26 months
We can see that the actual average numbers beat the low end (which is actually the median) of the estimated time ranges that the agency forecast. But actual numbers also had a greater variance from the averages: 16% of processed I-526 petitions and 14% of processed I-829 petitions took longer than the high end of the estimated times.
I-526 and I-829 processing by country
Lazicki reasons that the I-526 adjudication data does indeed show differences by country, but not enough to prove that USCIS was using the “visa availability” approach at the time. [USCIS just announced on January 29, 2020, that it will change I-526 processing from a “first in, first out” approach to a “visa availability approach that prioritizes Green Card by investment petitions from countries where visas are currently available.”]
- Chinese I-526 petitions in Q1 FY 2019 took 2 months longer to process than other countries
- Indian I-526 petitions took 5 months fewer to process that the average (Lazicki infers that this is due to expedited processing requests)
- Indians filed 31% of I-526 petitions; China filed 15%; Vietnam filed 11%; South Korea filed 6%
- China filed 81% of I-829 petitions; they also had 81% adjudicated
- the worldwide I-526 approval rate for EB5 Green-Card was over 90% but only 81% for China; Lazicki surmises this was because of the USCIS shift in policy regarding currency swaps
Lazicki wraps up her analysis of this quarter by stating that USCIS processing policy, counter to what they have publically stated, is not simply “first in, first out.” If that were the case, their estimated range for processing would not have such a variance — and actual processing times have an even greater range. She asks, “what explains why some petitions have been processed years earlier than others? One factor that’s obvious in the data — denial decisions go ‘out’ much later than approvals.”