|“Are we there yet?”|
Now that the Regional Center Pilot Program has been extended for another three years, the topic of premium processing is bound to come up again.
Here’s a bit of background for the new comers to the industry. Back in the day, when EB-5s were not as popular and the USCIS California Service Center was not completely overwhelmed, it used to be that I-526 petitions were often processed fairly quickly in a matter of three or four months. But as the program grew in popularity in the past years, while the official processing times published by the USCIS always stood at around five months, immigration lawyers would tell clients to realistically expect to wait nine months or so. It would not be shocking in the case which received a difficult RFE (Request for Evidence) for the process to take up to a year.
Premium processing is a service that the USCIS provides for certain visa categories (ex. H-1Bs, L-1s, etc.) where the petitioner would pay $1225 to “expedite” the processing and a response would be guaranteed for w/i 15 days upon receipt of the filing. (By “guaranteed” they mean that if for some reason they are not able to make a response, you will get your $1225 returned to you.) But because the promise is a “response” and not an “approval”, every so often you would hear an immigration attorney complaining about an inane they received for a premium processed petition. For example, the officer would make a fairly silly request in order to be able to say that they “responded” within 15 days. (But this is pretty rare and I personally have never experienced this.) A premium processing eligible petition that has been pending for a long time can also be “upgraded” to premium processing by sending in the required form and $1225.
Now in the context of I-526s, I have always been very pessimistic about premium processing being introduced anytime before the extension of the program. Even when the USCIS itself was pretty gung ho on the topic and saying that it might happen. Common sense dictates that the I-526s are backlogged because they don’t have enough manpower, and no government office was going to send more people to a department that may or may not exist at the end of the fiscal year. Also, because a petition can always be “upgraded” to premium processing, it is not hard to imagine that EVERYONE who had an I-526 pending would send in the upgrade request once it was introduced.
But now that the Regional Center Pilot Program has been extended, I am more hopeful for the prospect of premium processing in the EB-5 context. Most likely, as the USCIS itself expressed last year, it will be introduced for I-924s (Regional Center applications) first, if only because there are far fewer I-924s that can be potentially be upgraded than I-526s. (The former would be in the dozens while the latter, hundreds and hundreds.)
There is, however, nothing that I am aware of that says that the fee has to be $1225. That’s what it is for all other premium processable (?) petitions, but who knows. But even at a higher rate, I’m sure that many investors who are waiting to hear their fate would appreciate the opportunity to upgrade. Let’s see how it goes. It will be interesting to see if the USCIS brings up the topic in the next Quarterly Stakeholders Meeting in October.