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IPO Has Disregarded Its Duty to Adjudicate I-526 Petitions
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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
What is happening with EB-5 case processing? Why is IPO failing to
adjudicate Form I-526 petitions?
<u>IPO’s Official Statement</u>
In the EB-5 Stakeholder Engagement held on March 13, 2020, IPO Chief Sarah
“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 <a href=”https://egov.uscis.gov/processing-times/historic-pt”>states</a>
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
<p>This post originally appeared on <a href=”https://wolfsdorf.com/blog/2020/04/22/ipo-has-disregarded-its-duty-to-adjudicate-i-526-petitions/” target=”_blank”>Wolfsdorf Rosenthal LLP</a>. Reprinted with permission.</p>
About The Author<br/>
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<b>Joseph Barnett</b> is a partner at Wolfsdorf Rosenthal LLP and specializes in employment and business immigration cases, including immigrant petitions and non-immigrant visa applications for foreign entrepreneurs and investors, management personnel of international companies, individuals with EB-1 extraordinary ability, EB-2 national interest waiver, and alien workers. She also handles complex immigration cases such as protecting age-out derivative children under CSPA, mandamus litigation, consular inadmissibility, as well as preparing responses to Requests for Evidence, Notices of Intent to Deny, and Notices of Intent to Revoke.
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