FOIA 申请更新 I-526E 清单统计数据

Background: AIIA filed multiple Freedom of Information Act (FOIA) requests for data from USCIS on various topics that concern the EB-5 immigrant investor community. These included information on staffing levels at the IPO; up-to-date inventories of pending petitions by country of chargeability and visa classification; administrative policies on I-829 processing criteria; and implementation of the 2022 Reform and Integrity Act. AIIA initiated litigation against USCIS, compelling them to respond to each of our FOIA requests. We will continue to receive hundreds of pages worth of documents including internal memos, emails, and training manuals. AIIA Members are entitled to a full copy of the government’s FOIA response. If you would like to receive the additional information, reach out to us through our contact form.

With AIIA’s most recent FOIA response from USCIS in November 2023, we obtained never before seen data from the U.S. Citizenship and Immigrant Services (USCIS): the inventory of I-526E petitions which USCIS received from April 2022 until April 2023, broken down by nationality, EB-5 visa category, and month. This data allows us to see exactly how many petitions were filed by EB-5 investors in the first year of the post-RIA era. The FOIA response and our subsequent analysis finally allowed the EB-5 community to make approximations about the looming visa and petition backlogs at the Immigrant Investor Program Office (IPO), the EB-5-focused branch of the USCIS.

AIIA hosted a webinar to analyze this data with Suzanne Lazicki, Halston Chavez, Joey Barnett, and Charlie Oppenheim last month. It is currently available on our Youtube channel.

In April of 2023, over a year after the passage of the RIA, there was still little to no information about the amount of I-526E petitions being held at IPO. Since the RIA was passed, AIIA has warned investors of the high potential for an invisible visa backlogs forming in these new categories, given the restricted amount of visas apportioned to each category annually. The potential for backlogs is further compounded by the existence of country caps on visa issuance, which have led to the extensive backlogs in the unreserved categories for Indian and Chinese petitioners.

What did we learn from the last FOIA request?

High unemployment (HU) constitutes 68.8% of all filings from April 2022-2023, which is surprising, given this category offers only half the visa availability of the rural category (HU’s 10% of total EB-5 allowance + carryover compared to rural’s 20%). The demand for HU visas is very high, nearly exceeding the total supply of HU visas and the carried over HU visas. If every HU petition filed between April 22-23 resulted in demand for three visas, that demand will exceed annual visa supply and result in visa bulletin cut-off dates and visa wait times to regulate excess demand. The backlog impact will be particularly significant for petitioners from China and India, who are limited by country caps to 7% plus otherwise unused category visas.   

Rural petitions only constituted 23.8% of all filings from April 2022-April 2023. Demand for rural visas for investors who filed up until April 2023 was well below the number of visas available in a carryover fiscal year (FY), such as 2024, when all unused set-aside visas from 2023 are “carried over” into the 2024 set-aside visa supply. Even for the supply in a FY with normal visa allocation (nearly half of carry-over year supply), visas would still be sufficient to meet demand from the first year of RIA investment, even when accounting for more than one derivative applicant (such as family members) attached to each petition. However, rural demand must continue to be monitored as the supply and popularity of rural projects has continued to grow.

The initial FOIA report provides data only for the 1,585 I-526/I-526E filed in the year ended April 2023. Pipeline demand for EB-5 visas has built rapidly in the nine months since that inventory report. USCIS reported that 945 I-526 and I-526E petitions were filed in July-September 2023 alone. Such a number could be a backlog red light for the high unemployment category and/or yellow light for the rural category, depending on how these incoming petitions were distributed by TEA category and petitioner country. Unfortunately, USCIS has resisted our requests, including through the CIS Ombudsman, to pre-emptively disclose TEA and country information for I-526E receipts. Lacking such information, the AIIA, and the EB-5 community by extension, still lacks the most up to date I-526E inventory data to make a truly accurate estimation on the demands for each of the EB-5 category. Hence, AIIA has already submitted another FOIA request to obtain the missing data.

How can the visa category stay current until despite, as we claim, “there being an invisible backlog”?

This is a great question that requires understanding how the Visa Bulletin fits with the multi-step process to get a visa. Backlogs start to build when EB-5 investors get in the visa pipeline by filing I-526 or I-526E and get priority dates. This pipeline of potential future visa applicants moves through USCIS processing until I-526 approval, then to the stage of visa application/status adjustment. Unfortunately, the government only provides visibility into the pipeline at the second stage. The Visa Bulletin, the community’s primary signal for excess visa demand, only reacts to applicants who are qualified and ready to receive visas, not to people with pending I-526. No matter how many potential future visa applicants are already crowded at USCIS, the Visa Bulletin will keep the category “Current” until USCIS manages to move that crowd to the visa stage by approving petitions. EB-5 investors with pending I-526 and I-526E are an “invisible backlog” unless and until we manage to force USCIS to give us data for this population.  

Currently, most in-process EB-5 investors are not on the Visa Bulletin radar because their I-526Es are still sitting in a USCIS warehouse, patiently waiting to be adjudicated. As of September 2023, USCIS reported that it had 2,613 post-RIA I-526 and I-526E pending, but had only approved 63 petitions. A mere 63 principal visa applicants plus family are nowhere near exceeding the thousands of EB-5 visas available this year, so the Visa Bulletin registers no visible backlog yet. But there’s also the “invisible backlog” to consider: 2,600+ EB-5 investors, plus their spouses and children, who have 2022/2023 priority dates but whose I-526/I-526E are still pending at USCIS. AIIA aims to make this portion of the backlog pipeline visible by finding out which visas these pending petitioners are already queued up for. Then investors who enter the end of the rural, high unemployment, or infrastructure queues with 2024 priority dates will have some sense of the length of the queues that built up before them in 2022 and 2023.

最终想法

Investors and professionals need to know this data to make the best decision for their clients’ immigration and investment. With so much uncertainty in immigration already, knowing when immigrants can expect to get their visa, and how many investors are in line with them, is crucial to BOTH EB-5 investors and industry professionals. Until USCIS recognizes this and posts regular updates on its visa inventory and processing, we will FOIA this data for the EB-5 community. That’s why we, the AIIA community, must lead the fight for transparency, leveling the playing field for all EB-5 investors, regardless of visa category, nationality, or immigrant status. 

Acquiring, analyzing and publishing analysis on this data costs us time and money and as a nonprofit we rely on donations to keep this effort going.We ask that anyone, investor or professional, who supports our FOIA work, our mission to expand transparency in the EB-5 program, or any other support services we provide, please consider 捐款 to our cause. We are funded entirely by donations, especially by EB-5 investors and industry professionals. These donations are the ONLY way we fund our FOIA litigation, lobbying, and day-to-day operations, including our staff. Please consider helping our effort through a donation or by contributing for membership. We 的确 appreciate it.