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  • Writer's pictureWolfsdorf Rosenthal LLP

IPO Has Disregarded Its Duty to Adjudicate I-526 Petitions

USCIS released new data indicating that the Immigrant Investor Program Office (“IPO”) only adjudicated 455 Form I-526 petitions from October 1, 2019 to December 31, 2019, and that over 17,000 Form I-526 petitions remain pending at IPO.  This continues the downward trend of EB-5 processing.  In FY 2019, fewer than 5,000 cases were adjudicated.  In FY 2018, over 15,000 cases were adjudicated.

What is happening with EB-5 case processing?  Why is IPO failing to adjudicate Form I-526 petitions?

IPO’s Official Statement

In the EB-5 Stakeholder Engagement held on March 13, 2020, IPO Chief Sarah Kendall discussed “case completion rates”.  She stated:

  • IPO has taken significant steps in building more robust quality assurance and control programs, leading to more consistent adjudication practices, and also completed an extensive training session for all Form I-526 and Form I-829 adjudicators and economists.

  • IPO has also focused on enhancing the integrity of the program and working to find ways to protect the program from abusive actors. This focus has meant greater coordination with agencies in the law enforcement community and with other partners. In the last year, both our FDNS and Compliance teams have presented training to and worked with a larger number of outside agencies than in all [year’s] past.

  • Case completion rates have decreased, partly because of these activities, and we understand the concerns that this has on our stakeholders. With a lot of the infrastructure development mentioned above now behind us, IPO is better situated to improve productivity. In fact, preliminary production data for February shows a step in the right direction. The USCIS Office of Performance and Quality anticipates publishing new data in the coming months.

As of the date of this blog, this new data has not been released.

Chief Kendall also indicated that IPO had about 245 dedicated personnel at the beginning of FY 2020, including support staff, adjudicators, economists, Fraud Detection and National Security personnel, and other positions.  She mentioned that the number of adjudicative resources and personnel assigned to each EB-5 form type varies according to workload demands and agency priorities.

Based on the recently released data, despite the incredible amount of demand for Form I-526 petition processing, the agency appears to not prioritize these adjudications, even though EB-5 is a job creation program for U.S. workers.

Interestingly, on November 14, 2019, USCIS issued a Proposed Rule in which it proposed fee increases for almost all types of benefits applications and petitions it adjudicates.  In the Proposed Rule, USCIS stated that the average number of employee hours it takes to process an I-526 petition is only 8.5 hours.

Additionally, it’s unclear why USCIS states that historical average processing times for FY 2020 (through January 2020) is only 12.6 months, when elsewhere it states the estimated time range for processing is 31 to 50.5 months.

Let’s do some math:  There were 455 Form I-526 cases processed in Q1 FY 2020.  It takes an average of 8.5 hours per I-526 case.  That means under 4,000 hours would need to be spent to adjudicate these cases.  Assuming only 100 of the 245 personnel at IPO work on Form I-526 petitions, that is under 40 hours (1 week!) spent per adjudicator during Q1 FY 2020 to complete this processing.  Something doesn’t add up.

Why does IPO not comply with the direction of Congress to complete immigration benefits within 180 days of filing?

Why does IPO not comply with the Administrative Procedures Act to “proceed to conclude a matter presented to it” “with due regard for convenience and necessity” and “within a reasonable time”?

My take:  Chief Sarah Kendall is merely executing the plan of U.S. Department of Homeland Security and USCIS to kill the EB-5 program through delays and discouragement, all under the pretense of “integrity” and “compliance’.

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