How to Interpret the USCIS’s Published Processing Times for the I-526 PetitionDecember 23, 2020
The estimated time range that the USCIS posts can be confusing and is easily and commonly misunderstood. It is not a minimum and maximum range, nor is the midpoint between the two numbers the average or median. Instead, what the two numbers actually mean is that the lower number (30.5 months) is how long it will take the USCIS to process or complete 50% of cases (the median) and the higher number (50 months) is how long it will take the USCIS to process or complete 93% of cases. Additionally, the estimated time range does not provide a projection for an individual filing a petition today, but instead it provides an estimate based on adjudication data captured in the two months prior to the report’s issuance.
March 31st Turning Point for EB-5 Petition Processing
On March 31th, 2020, the USCIS implemented a new procedure, which changed its policy of First-In-First-Out (FIFO) adjudication, to prioritizing processing of I-526 petitions based upon visa availability. This new processing protocol sets aside the processing of petitions from applicants from an “oversubscribed country” (commonly known as retrogression). Oversubscribed describes a country where the EB-5 visa demand is greater than the allocation limit of 700 EB-5 visas per US Fiscal Year. This is approximately 7% of the overall visas for the EB-5 program in a given fiscal year.
The USCIS notes that the purpose of the “visa availability approach” is to speed up processing. In this case it is intended to speed up the processing of I-526 petitions for applicants from countries who have an EB-5 visa available, or soon to be available. As a result of this change, the USCIS website now reflects different time ranges for two sets of petitioners on their Estimated Time Range Report: China-Mainland Born and All Other Areas (pictured below).
The USCIS also reports the “Historical Average Processing Times.” This report reflects combined data from all USCIS offices and is based on the length of time that an office’s application/petition receipts have been awaiting adjudication. Through August 31, 2020, the USCIS estimates that in FY2020 the average processing time for an I-526 petition is 14.1 months (using data from October 1, 2019 to August 31, 2020).
When explaining the processing of I-526 petitions by the USCIS, it is helpful to look at the petitions on file and future petitions as an “inventory.” In an inventory model, variations in the average age can be explained by differences in the speed of inflow (petitions filed) and outflow (petitions adjudicated). Using the inventory illustration, the drastic drop from 19.8 months in FY 2019 to 14.1 months in the first eight months of FY2020 reflect both the surge of I-526 petitions filed prior to the November 21, 2019 investment amount increase and the pickup of adjudication pace that outpaced new I-526 filings.
Forward Momentum toward Faster I-526 Petition Processing
Overall, CMB welcomes and is encouraged by the USCIS’s recent efforts to reduce processing times for EB-5 participants. However, there is no way for CMB or any other regional center to predict the future or the outcome for an individual petition. Readers are encouraged to be wary of any regional center project or representative that guarantees or promises a shorter processing time than the USCIS website.
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