On January 29, 2020, the USCIS (US Citizenship and Immigration Services) announced its new policy for Form I-526 (Immigrant Petition by Alien Investor), also known as the EB-5 green card, establishing relevant modifications to the processing of its analysis.
Processing was based on the FIFO rule — first-in, first-out —, which means that EB-5 petitions were evaluated and decided according to the date they had been submitted to the USCIS.
As stated in an official statement, the new USCIS rule for EB-5 petitions is based on a visa availability approach, which will prioritize the analysis of petitions based on the availability of a green card for the applicant’s country.
This visa availability is defined by an annual quota for EB-5 visas, which is approximately 10,000 EB-5s per year, and no country can exceed more than 7% of the total available in each fiscal year.
Once that annual quota has been exhausted, the State Department will establish a queue that will define the order in which immigrant visas will be issued.
Will it affect your petition?
This new policy will directly affect investors from countries that exceed their annual EB-5 quota, such as China, Vietnam and India, whose petition priority dates are not yet considered “current” by the USCIS Visa Bulletin. This means that these investors will wait longer for their EB-5 petition to be heard by the USCIS.
As for investors from countries where visas are immediately available, the rule will allow better use of their annual allocation of EB-5 visas by country. According to Louanni Cesario, a senior lawyer at Drummond Advisors and a specialist in immigration proceedings, “the new rule tends to benefit Brazilian petitioners. This is because a large number of processes from other countries, which do not have visas available at the moment, end up paralyzing the processing of the others. With the new rule, these processes must be removed from the queue, making room for faster processing of Brazilian orders”.
The new visa availability approach will apply to pending petitions from March 31, 2020.