A “Modest Proposal” for the EB-5 Immigrant Investor Program Office (IPO) Leadership

As evidenced from USCIS’ comments made during the Nov. 7^th stakeholder meeting, the agency continues to struggle with a massive backlog of I-526 petitions and no immediate solutions is in sight.  As the most astute independent observer of the EB-5 industry, Suzanne Lazicki’s most recent blog delves into the specifics behind the backlog, clinically dissecting the factors and dynamics involved.  IPO Deputy Chief Julia Harrison explained in the November meeting that while USCIS can provide average processing times, actual adjudication time for any specific petition depends on multiple factors ranging from where the file is in the USCIS queue, the quality/approvability of the files ahead of it, and the “quality and clarity” of the particular petition.in question.  In other words, when it comes to I-526 adjudication, “the devil is in the details”, and I could not agree more with Ms. Harrison’s take on the situation.

My “Modest Proposal” to IPO, intended to assist the office in managing and resolving the I-526 backlog, bears neither the biting cynicism of Jonathan Swift’s original version, nor its linguistic prowess.  Instead, my suggestion merely reflects the observations of someone who has been wrangling with visa processing since the late 80’s, first as a U.S. visa officer, then as a private immigration attorney, and finally, for the last six years, as the owner of American Venture Solutions Regional Center.   My proposed solution for eliminating the I-526 backlog provides IPO with a clearly workable methodology of not only eliminating the I-526 adjudication backlog within a matter of months, but with a novel way of managing adjudication caseload which permits IPO to shift human resources “on the fly” to respond to factors such as country-specific backlogs, statutory lapses, and the like.  And it does so without adversely affecting the interests of ANY group of EB-5 investors awaiting I-526 adjudication, irrespective of their nationality.  Consider:

• According to the most recent statistics provided by USCIS, a total of 30,259 were pending at the National Visa Center as of November 2017. Of those, 26,725 were from Mainland China, the only country currently facing a visa cut-off based on the high demand for the EB-5 visa…88.3% of the total visa cases to process.
• Despite the fact that the U.S. Department of Homeland Security recently stated that Chinese EB-5 investors applying today may have to wait at least 10 years to get their green cards because of the backlog – see CNN article – 2017 saw a 17% increase in Chinese filings compared to 2016.

From the preceding facts, we can readily deduce that the enormous backlog of over 30,000 cases is at least in part due to the fact that the NVC simply CANNOT forward an approved I-526 to the appropriate U.S. visa office in China simply because of the priority date delays facing all Chinese investors already in the EB-5 pipeline.  In other words, after USCIS adjudicates and approves a Chinese I-526, it MUST remain in limbo, unable to be moved forward for consular processing, because of the unavailability of visa numbers for China…for 9 out of 10 of the cases in the backlog!

My proposal is simple:  IPO should bifurcate both the existing inventory of I-526s awaiting adjudication as well as all incoming new I-526 applications into two specific adjudication paths:

1. I-526 Applications from Nationals of Countries which are NOT presently subject to a visa backlog OR
2. I-526 Applications from Nationals of Countries which ARE presently subject to a visa backlog.

For the moment, only China would fall into the second category but if Charles (“Charlie”) Oppenheim, Chief of the Visa Control and Reporting Division – who knows more about visa retrogression and how priority date dynamics are likely to unfold than anyone else on earth – is correct, countries like Vietnam, India, and others are right around the corner, facing their own respective backlogs driven by over-demand for EB-5.

Why unnecessarily delay the immigration of EB-5 investors who CAN come to the U.S. now? Splitting I-526 processing ab inicio would permit IPO to direct resources most efficiently by separating all pending I-526s into two categories: those which can be approved TODAY and those which CANNOT be approved today.  In the case of the former, IPO can handle I-526 processing normally, inputting the case, issuing the receipt, and adjudicating the petition concurrently, firing it off to the NVC.  But I would propose that in the case of the latter – again, today only Chinese applicants but other nationalities likely in the future – the IPO should ONLY:

• open the I-526 package
• confirm that the package/fee, etc. is complete
• issue the receipt, establishing the priority date, then…
• withhold the adjudication of the petition package by holding it abeyance (and in chronological order of priority dates) until such time that visa availability becomes realistic for the earliest of the priority dates in IPO’s pending queue. 

While the notion of a bifurcated, two-path I-526 adjudication path may not be palatable to some, key to my proposal is reality that neither today’s Chinese investors pending adjudication nor any future investors from countries which hit their EB-5 quota limits and face backlogs will be adversely affected.  For ANY future U.S. immigrant facing a visa backlog – I don’t care whether they are an EB-5 investor or the long-pending sibling of a U.S. citizen – the ONLY thing that matters is The Priority Date, the date which defines their place in the waiting line, their spot in the queue.  I respectfully submit that IPO’s current process relegates overburdened adjudicators to spending 90% of their time adjudicating cases which cannot be possibly converted into U.S. conditional residency for a decade (or longer, as some predict).  This does NOT help those from nations with backlogs but it DOES hurt those from nations which are not backlogged.

As a former visa officer who adjudicated many immigrant visa cases which had been waiting for many years pending priority date currency, I am acutely aware that the longer the gap between adjudication of the immigrant petition and the consular interview, the more onerous the workload for adjudicators and the more oppressive the repercussions for the person FINALLY at the finish line of their U.S. residency process.  Having someone stuck in their home country for weeks or month while “refreshing” the needed documentation for final immigrant visa approval is a colossal waste of time and causes great financial hardship as well as family separation.  Why not defer the actual adjudication of backlogged EB-5 country categories so that the time between IPO I-526 approval and visa processing at the consulate is SHORTENED, improving the accuracy of the information at hand for final immigrant visa processing at the consulate?

What if IPO instead focused on approving the 10% of cases which are “current”, i.e., NOT subject to country-specific backlogs?  What if we could just get those 3,000 cases of Eb-5 investors who can go straight from I-526 approval to NVC processing to consular processing without worrying about priority date currency?  3000 EB-5 investor families could swiftly enter the U.S. and bring their respective histories of entrepreneurial success and dynamism to our economy.  Chinese cases – and whatever other nationality is next in the unfortunate reality of visa backlogs – could be swiftly processed for priority dates, each investor safely securing his or her place in line, and the cases carefully monitored by the USCIS to insure that WHEN the time approaches for a particular investor, the petition is adjudicated and passed off to NVC with the objective of getting the investor family to the consulate window just in time for a current processing date.

This is very doable, it does not require any regulatory changes, and there is no plausible argument against the proposal; as a visa officer in Ciudad Juarez in the late 80s, when the consulate was the number one visa processing post in the world, necessity forced us to undertake a number of similar innovative administrative responses to address the daunting workload we faced.  In following my suggestion, IPO can clear 90% of the current backlog in months with zero negative impact to pending Chinese EB-5 I-526s.  In the process, the office creates a methodology which will bring sanity to IPO adjudications as EB-5 demand continues to climb and more and more nations are subject to backlog.  Most of all, we, as a nation, can finally fulfill our promised responsibility to those EB-5 investors who are NOT from countries facing visa backlogs by giving them their fresh start in American within the timeline they were promised.

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