The popularity of the EB-5 Immigrant Investor Program means that investors have to, in general, wait several years before they receive their conditional permanent resident status. Unsurprisingly, the COVID-19 pandemic has had an effect on EB-5 wait times. However, the specific impact varies based on the stage of the EB-5 visa process an investor is in.
Filing an I-526 Petition
To begin the EB-5 visa process, an investor first needs to file an I-526 petition. The amount of time it takes to complete and file an I-526 petition differs depending on each EB-5 investor’s unique circumstances. Factors that affect how long this takes include the amount of due diligence required and the complexity of proving that the investor obtained the funds lawfully.EB-5 investors should consult with an immigration attorney to ensure that they have included all the required information and documentation in their I-526 petition to avoid any delays.
Adjudicating an I-526 Petition
I-526 petitions are adjudicated by the Immigrant Investor Program Office (IPO) of United States Citizenship and Immigration Services (USCIS). USCIS closed all its offices to the public on March 18, 2020, in response to the COVID-19 pandemic. Originally slated to reopen on May 4, USCIS offices are now scheduled to reopen on or after June 4, 2020.
The adjudication of I-526 petitions are continuing as usual at the IPO, which is not a public-facing entity and therefore not affected by the closure of USCIS offices. As of May 2020, the processing time for I-526 petitions is estimated at 29.5 to 44.5 months. However, the USCIS quarterly processing report for FY2019 Q1shows that most adjudications fall outside of the estimated range. Additionally, the historical national average processing time for I-526 petitions from October 1, 2019, to February 29, 2020, sits at 12.9 months. While EB-5 investors should still expect to wait a minimum of two years for their I-526 adjudication, the processing data suggests that they may receive their decisions sooner.
Visa Availability Processing Approach
On March 31, 2020, the IPO switched from a first-in-first-out approach to I-526 petition processing to a visa availability approach, which means that I-526 petitions are now adjudicated based on the availability of EB-5 visas for the investor’s country of origin. Thus far, only investors from Mainland China are affected by the new processing approach. However, the Date for Filing listed in the May 2020 Visa Bulletin for Chinese EB-5 investors is December 15, 2015, which means that Chinese investors may experience longer wait times than investors from other countries.
After I-526 Approval
As of May 2020, EB-5 investors from China, India, and Vietnam are the only ones that have to wait to file their immigrant visa application even after their I-526 petitions have been approved. Investors from these three countries will have to wait until they have been contacted by the National Visa Center (NVC) before they can proceed with their visa application. The NVC will not contact an applicant until the applicant’s priority date is earlier than the final action date for their country of origin. EB-5 investors from backlogged countries may find themselves waiting a few extra months to years before they can continue with their visa process.
The next step for overseas EB-5 investors once their I-526 petition has been approved and they have been contacted by the NVC is to file a DS-260 form at their local U.S. consulate or embassy to apply for U.S. permanent resident status. With all U.S. consulates and embassies closed for routine visa services, overseas EB-5 investors will need to wait until COVID-19 subsides to proceed with their visa process.
EB-5 investors who are already living in the United States under a different visa only need to file an I-485 petition to adjust their immigration status. They do not need to wait for the NVC to contact them. nor do they have to visit a U.S. consulate to file their application. Therefore, these investors are largely unaffected by the COVID-19 closures.
While overseas EB-5 investors are unable to proceed past their I-526 approvals due to the closure of U.S. embassies and consulates, EB-5 investors living in the United States who need to schedule a visa interview or biometric appointment are being held up by the closure of all domestic USCIS offices. Under these circumstances, overseas EB-5 investors should expect to wait for a few extra months after their visa interviews to obtain their visas.