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New “Visa Availability” Approach for Reviewing EB-5 Petitions

On March 31, 2020, U.S. Citizenship and Immigration Services (USCIS) changed its processing of I-526 petitions from a first in first out (FIFO) approach to one based on visa availability. Under the FIFO approach, EB-5 petitions were reviewed in the order that it was received. The new approach based on visa availability will queue EB-5 petitions in the order that a visa becomes available. This means that investors from countries without a visa-backlog will have their EB-5 petitions reviewed more quickly.

According to USCIS, the purpose of this change is to provide investors from traditionally underrepresented countries better access to the EB-5 program. Under the old approach, an investor from China (a country with a visa backlog) with a priority date of March 1, 2020, will not be able to receive a visa even if the EB-5 petition is approved because the visa priority date is not yet current. Whereas an investor from Uruguay (a country without a visa backlog) with the same priority date would be able to receive a visa immediately upon approval of the EB-5 petition. Under the new visa availability approach, the Uruguayan investor’s petition would be reviewed first and the Chinese investor’s petition would be reviewed when the priority is close to being current.

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