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On March 13, 2020, the USCIS invited stakeholders to a Public Engagement teleconference call to discuss updates on the EB-5 program, including the new operational approach involving the visa allocation process.

USCIS' new operational approach affects the processing of immigrant petitions of foreign investors, known as "EB-5 immigrant visas". Once approved for an investment visa, investors and their families are free to live and work in America for two years as temporary residents, and then petition the U.S. government for the Legal Permanent Resident (“LPR”) status. After five years combined in temporary and LPR status, they become eligible to apply for U.S. citizenship.

The new approach determines that the management of the inventory of Forms I-526 – both pending and new petitions – will change from a first-in, first out basis, to a visa availability approach. In other words, the USCIS used to adjudicate petitions in the same order they were received. However, going forward, the USCIS will prioritize Form I-526 petitions based on whether a visa would be immediately available or soon available to the petitioner and the availability will be accessed on a monthly basis. The USCIS clarified that this approach is already used with the Form I-130 (Petition for Alien Relative) in categories subject to an annual limit. According to the agency, there will be no change in substantive requirements or the expedite process. It will simply ensure that the annual number per country availability of visas is better optimized. The availability of numbers of EB-5 will also remain unchanged for the next year. The USCIS will begin to implement the new approach on March 31, 2020 (FY 2020).

According to the USCIS, the majority of applicants should benefit from this change considering that their process will begin more quickly. This is also good news for parents whose children cold potentially “age out” and not be able to immigrate with the rest of the family. As of 2020, the only three countries whose beneficiaries of approved EB-5 petitions do not have an immigrant visa immediately available are China, Vietnam and India. Because the majority of petitioners are nationals of China, the new policy will likely slow down the process for Chinese nationals even more.

For more on this new operational approach and other Frequently Asked Questions, concerning the EB -5 Program.

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