+ How long does it take for an adjudicator to approve a case?

In the case of a Regional Center case, when an exemplar or prior I-526 form has already been approved by USCIS, the adjudicator must check the file to ensure that the required program and source of funds materials are there. The adjudicator must also do preliminary security checks against the investor and key individuals. If there are National Security Issues, the adjudicator will have to wait for special units and the interagency process to resolve that the investor is not a security risk. There are also systems based inputs and physical actions that must be completed to package the physical file for its next step. The primary discretionary action is the source of funds analysis. If an adjudicator is fast, and if the file materials are well organized, the adjudicator may be able to clear 3-4 approvals in a day. 2 cases per day is pretty standard. RFEs and “direct investment” cases take longer. In recent months, processing time seems longer. The Investor Program Office has not adequately explained the additional delays.

+ What do I do if I don’t have all of the “required” documents I need for the I-526?

USCIS often says that documents are “required.” But some times documents aren’t available. That doesn’t mean your I-526 will be rejected. It depends on why the documents are unavailable, and on whether you can prove the facts that would normally be discussed in those documents some other way. For example, USCIS often asks for 5 years of tax records. In the case of a youthful investor, five years of tax records may not exist. In such a case, the tax records from the person who is the source of the funds are generally produced. When assembling an I-526 or related submissions, the preponderance of the evidence burden of proof and a credible overall presentation is sometimes more important than any particular document.

+ Why does USCIS deny so many cases?

Actually, it doesn’t. The overwhelming majority of regional center program cases are approved. Fewer direct investment cases are approved, but a majority of direct investment cases are approved, too. This is another area where things have changed. More cases are being denied that was the case a few years ago, but still, the approval rates are higher than most investors think.

+ Does the increase in required investment amount under the new regulations mean that more cases will be denied?

USCIS hasn’t announced any changes in the methods it uses to assess cases. Most people working in the field assume that, other than the new method of assessing TEAs and the required investment amount, little will change. While the program changes may reflect policy shifts generally, there is no reason to believe day-to-day adjudication will be any different. Ironically, the new guidelines may even be good for some investors. After all, the concept that 10 jobs are likely to be created from an investment is easier to accept the larger the investment.

+ What is the standard by which the cases are judged?

The “preponderance of evidence” standard is an American legal construct that basically tells a fact finder how suspicious s/he should be. Judges often tell American jurors that it means “more likely than not” or anything more than 50%, or “50% plus a feather.” Looking at it mechanically is not always helpful, and does little to distinguish it from its related concepts “clear and convincing” evidence, and “proof beyond a reasonable doubt.” In the case of an EB5 petition, or any other immigration petition, some evidence of every element is required, but it’s more helpful to think of the evidence as a whole. That is, would a reasonable person in the position of the adjudicator be willing to accept the story that I am trying to tell? This assessment can be an art. That's why a former adjudicator is a great asset for your team.

+ I got a Request for Evidence. Does that mean USCIS wants to deny my petition?

Not all all. In fairness to USCIS, they don’t want to deny any petitions. Incomplete petitions, or those that are poorly supported, require more time and effort from adjudicators. Thats why it’s important to consult established experts when preparing your I-526E filing. Familiar formats and layouts in petitions give adjudicators confidence. Who wouldn’t want an easy day at work? Our job is to help you make it easy for them to approve your case. Experienced professionals can help you read between the lines of an RFE to determine whether you are in serious trouble. A Notice of Intent to Deny (NOID) is an entirely different story.

+ My friend’s petition was filed at the same time mine was, but his has been adjudicated already. What does that mean for me?

Most likely, nothing. While USCIS tries to keep to a practice of first in, first out, or by a "visa-availability" approach, there are a lot of issues that affect the timing of adjudication that have nothing to do with the merits of the cases. Project exemplars get approved at different rates, holding up adjudications of files in one project compared to another. The volume of files USCIS deals with makes it difficult for them to adhere to FIFO, as it is sometimes easier to simply adjudicate the next file within arms reach, rather than the next one in the filing sequence. Experiences suggests that USCIS is rarely as intentional in its actions as applicants think. It is a small comfort, and actually part of the frustration of the EB-5 program that IPO is poorly managed, and not accountable to shareholders. What is random sometimes looks intentional.

+ Why is it so hard to get specific answers from USCIS about what’s going on with my file?

Volume makes it hard for USCIS to communicate about individual cases other than in a very formal and general manner. In addition, there have unfortunately been historical abuses that have discouraged USCIS from allowing its adjudicators to contact applicants and attorneys in an informal manner. In many ways, a give and take might work well in the low volume EB5 area, but USCIS adjudicates thousands and thousands of different types of cases, and EB5 applicants are part of a sprawling system.

+ Who are the adjudicators?

Adjudicators are typically mid-level bureaucrats from USCIS or the parent DHS. They will usually have some prior adjudicator experience. A substantial number of them have advanced degrees in law or business, although this is not required. The workforce at the Immigrant Program Office (EB5) is quite diverse, and a good adjudicator seeks out colleagues to inquire about unfamiliar cultural practices or other issues of first impression. Many of the adjudicators are naturalized citizens, or first generation Americans who still understand and participate in their family’s cultural practices. The average adjudicator is probably 35 years of age or older. The adjudicators work alongside economists that do the initial analysis of project job creation reports.

+ What can I do to speed the process up?

There is very little that the investor can do to speed up the process. Because of the Investor Program Office's reluctance to communicate with the public about cases, it's difficult to find out what's going on. A legal action, called a "Mandamus," can be filed, depending on the case. Sometimes a Manadamus can nudge IPO to give a case some attention.