Tag Archives: AILA

EB-5 Processing Issues During COVID-19

The American Immigration Lawyers Association (AILA) has a monthly check-in with Charlie Oppenheim, Chief of the Visa Control and Reporting Division at the Department of State. During the August exchange, Oppenheim addressed EB-5 processing issues during the COVID-19 pandemic. We have already seen long processing times, even as the Visa Bulletin advances for previously backlogged countries like India.

Documentarily Qualified Cases Held at NVC

Oppenheim mentioned that a large number of Mainland China-born EB-5 investors were “not documentarily qualified.” This means that EB-5 cases never left the National Visa Center (NVC) and forwarded to the Consulate because NVC checklists or fee payments are outstanding. It was also noted that as a result of the pandemic and the temporary suspension of routine visa services at embassies and consulates, NVC paused shipments of cases. NVC will resume shipments at the request of the embassies and consulates as they assess local conditions and capabilities.

Some EB-5 investors are asked to provide civil documents that were previously uploaded to ASK NVC. You may avoid duplicate requests by uploading all documentation to NVC Electronic at one time. New applications or document requests may occur if a case goes into termination, such as when filing dates retrogress. Documentarily complete cases should restore to that state when the date becomes current again.

NVC Questions

Documents are to be submitted only through the NVC electronic portal. The Ask NVC electronic form is still available to accept questions, but due to the COVID-19 pandemic a statement cautions that NVC is working with reduced staff and requests that only urgent medical or humanitarian inquiries or necessary case updates for pending cases be submitted. Individuals with general questions such as case status and document lists are directed to log in to the Consular Electronic Application Center.

NVC Timelines

Many EB-5 applicants have waited 4-5 months for fee bills to be issued. Please note that a fee bill will not be issued until the case is current. After the visa bulletin is updated each month, the fee bills will be sent within a few days to those with current priority dates. If you receive a notice that NVC has received your case, you should notify the office of any dependents using the NVC Public Inquiry Form. While the current Form I-526 has a place to list derivatives, many EB-5 applicants filed using an older version of the form, requiring those individuals to add on dependents at a later stage.

Do you have questions about the EB-5 program? Contact us at info@challalaw.com to explore how your investment could earn you and your family green cards in the U.S.!

RESUMING SEPTEMBER 16, 2020: Join us on Wednesdays for a live webinar at 12 PM ET on critical immigration updates

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August 2020 EB-5 Investor Updates

EB-5 Investor Updates

Processing Delays: 56%-67% Increase in Estimated Timelines, but the Visa Bulletin for India is CURRENT!

In May 2020, the estimated processing time frame for Form I-526 was 29.5-44.5 months but we saw an increase in the upper limit in June: the estimated time was 29.5 to 61 months for adjudication. In July there was another huge jump, showing processing times to be between 46 to 74.5 months, only allowing for case inquiries for cases filed before June 9, 2014.

The lower limit estimated processing time increased 56%, while the upper limit increased over 67% between June and August.


It is unclear whether this delay is due to the shift away from the FIFO or first-in, first out processing approach taken in March of this year. The agency switched to a visa availability approach to consider I-526 petitions where visas are immediately available or will be available soon. Currently the per-country cap established by Congress limits individuals from a single country to receiving no more than 7 percent of an employment-based visa allocation (unless the numbers would otherwise go unused).

Recent Regional Center EB-5 Approval Received in 28 Months


Some have predicted that USCIS was receiving many case inquiries and decided to move the receipt date for a case inquiry backward to “catch up” on processing. We recently had an EB-5 approval in June for a case that was filed in February of 2018 for an Indian citizen. It is unlikely USCIS is actually processing cases from 2014.

Children Nearing the Age of 21?

The Child Status Protection Act went into effect in 2002, allowing certain applicants to maintain their age for immigration purposes. If a parent files in the EB-5 category, the child may be able to take advantage of the permanent residence application. For the EB-5 category, a child’s age “freezes” on the date that the I-526 is filed and then begins counting again after the approval.

Email us at info@challalaw.com to get started on your family’s immigration journey!

Checking Case Processing Times

To check current processing times, go to https://egov.uscis.gov/processing-times/

Click on the Form dropdown box to select I-526, Immigrant Petition by Alien Entrepreneur. On the Field Office or Service Center dropdown menu, select Immigrant Investor Program Office, then click the Get processing time button.

Scroll down to see the estimated time range, as well as the receipt date for a case inquiry.

Your receipt number and receipt and priority dates can be found on your I-797 receipt notice.

Checking Your Case Status

To check on the status of your case, go to: https://egov.uscis.gov/casestatus/landing.do and enter your receipt number. Click on the Check Status button.

Visa Bulletin Progress: India is Current

Despite the processing delays, we have seen significant progress in the EB-5 category. Applicants from China are still subject to a long wait, with the priority date stuck in August of 2015. Similarly, Vietnam shows a priority date of July 22, 2017. We are finally seeing the EB-5 priority date for India as current.

Contact us at info@challalaw.com to discuss how to start your EB-5 green card process today!

Presidential Proclamation Update

The president’s recent proclamation suspending immigration for 60 days applies to individuals outside of the U.S. who receive green card approvals after the effective date of April 23, 2020. However, due to the importance of continued investment and job creation, the EB-5 program is specifically excluded from this order. The order also does not apply to individuals adjusting status from within the U.S. For complete details and exemptions, read our recent post on the Challa Law Group website.

Additional COVID-19 UpdatesU.S. Citizenship and Immigration Services temporarily suspended in-person services at its field offices, asylum offices, and Application Support Centers (ASCs) to help slow the spread of Coronavirus Disease 2019 (COVID-19). USCIS offices are open, but some consulates and embassies are operating on limited basis as conditions necessitate. Emergency services can still be requested.

Review some of the recent COVID-19 updates for employers and foreign workers:

RESUMING SEPTEMBER 16, 2020: Join us on Wednesdays for a live webinar at 12 PM ET for critical immigration updates

Visit our COVID-19 resource page for the latest updates or follow us on FacebookTwitterInstagram, or LinkedIn. You can also sign up for our mailing list.

Contact Challa Law Group

Changes Imminent to H-4 Dependent Form I-539: USCIS Announces Updated Implementation Plan

USCIS recently announced their intent to publish a new version of Form I-539, Application to Extend/Change Nonimmigrant Status. Form I-539 is commonly used by individuals residing in the U.S. temporarily, such as dependents of H-1B, L-1, E-1, E-2, J-1, etc. F-1 students and B-1/B-2 visitors may also use the form to extend their stay in the U.S.

USCIS originally stated that the revised version will be available on March 11, 2019; the same day only that version of the form will be accepted. The supplemental Form I-539A was also scheduled to be updated on that date.

Stakeholder Concern

The American Immigration Lawyers Association (AILA) and other stakeholders expressed concern that there is no grace period and that the form and instructions are being released the same day that it becomes mandatory to use. The timing is difficult for beneficiaries and companies attempting to file for H-1B employees and H-4 dependents by the April filing deadline. AILA sent a letter on February 21 to USCIS Director Cissna requesting a delay for the March 11 effective date and suggesting a 90-day grace period for the updated form.

USCIS Revises Form Implementation Plan

The Office of the Citizenship and Immigration Services Ombudsman considered the concerns stakeholders articulated over the transition and hosted a teleconference on March 1, 2019 to discuss the revised forms. During that call, USCIS announced some modifications to the original timeline and implementation plan:

  • USCIS stated the revised forms I-539 and I-539A would be posted three days early.
  • There will be a 10-day grace period for those filing with the old versions of the forms: the previous version with edition date 12/23/16 will be accepted if received at a USCIS Lockbox by close of business on March 21, 2019.
  • The new forms with edition date of 2/4/19 will be accepted starting March 11, 2019.

USCIS also stated that during the grace period, the new forms will be held for processing until March 22, 2019 with the receipt date based on when the USCIS Lockbox actually received the filing.

Highlighted Updates

Below are the major changes to the form I-539 and I-539A:

  • Every co-applicant on the primary Form I-539 must submit and sign a separate Form I-539A. Parents or guardians may sign on behalf of children under the age of 14.
  • Every applicant and co-applicant must now pay separate $85 biometric services fees (except certain A, G, and NATO nonimmigrants).
  • Every applicant and co-applicant will receive biometric services appointments, regardless of age, containing an individual receipt number. The appointments will be scheduled at the Application Support Center (ASC) closest to the primary applicant’s address. (Co-applicants who wish to be scheduled at a different ASC location should file a separate Form I-539.)

Implications for H-1B Cap Season

Challa Law Group has determined that only select H-4 filings will be sent with the initial H-1B petition due to the uncertainty and timing surrounding the updated forms. We will only file in cases in which the principal or the H-4 dependent will fall out of a valid immigration status without a pending application or petition. For example, if the principal visa holder has Optional Practical Training through an F-1 student visa, he or she can utilize the “cap gap” to continue working until October 1. The individual can then stay in the U.S. based on the pending H-1B but cannot continue working beyond October 1 without another work-authorized status. The dependent should file for the H-4 application to also maintain his or her stay in the U.S. while the USCIS is adjudicating the cases. (For F-1 students with OPT expiring before October 1, if an OPT STEM extension is available, the student should first file for the STEM extension instead of an H-4 visa until an H-1B or another independent status can be obtained.)

By deferring the H-4 applications until after the cap filing deadline, we will mitigate some of the additional confusion surrounding a form update with no grace period. When an individual is selected in the H-1B visa cap, then the H-4 application can be submitted at that time. This will allow biometrics fees and additional signatures to be collected from H-4 dependents separately from the H-1B documentation, streamlining the process for employers and beneficiaries.

 Trump Administration’s Intent to Rescind H-4 Work Authorization

In 2015, DHS published a final rule extending eligibility for employment authorization to certain H-4 dependent spouses of H-1B nonimmigrants seeking employment-based permanent residence. That rule is now being reconsidered as the Trump administration signaled its intent to remove work authorization for H-4 dependents in late 2017. The proposed rule has moved forward to review by the Office of Management and Personnel. While the proposed regulation is not available for public review yet, some have predicted that the rule could be published in the Federal Register before a March 18 deadline in a lawsuit: Save Jobs USA v. DHS. The lawsuit, brought by U.S. technology workers, purports that DHS had no authority to issue work authorization to H-4 spouses in the first place and that the program should end immediately.

Possible Timeline for H-4 Work Authorization Rescission

While the final rule will not be available until it is published in the Federal Register, we expect that the rule will provide a timeline for no longer accepting H-4 EAD applications and determine when current H-4 EAD holders will need to stop working (unless obtaining an alternative work-authorized status). If the rule is rescinded, there could be additional litigation to challenge the ruling. Individuals currently working on the H-4 EAD should consider an independent work-authorized status if available.

Note: Attorneys Challa and Millburn at Challa Law Group are members of the American Immigration Lawyers Association.