The Director of USCIS, Alejandro Mayorkas, announced on May 19, 2011, a proposal to implement premium processing of cases under the EB-5 program. The significance of premium processing is that it is a program under which USCIS, in return for an additional fee of $1,225, currently, commits itself to deciding the case, or taking further action on the case by requesting additional evidence, within 15 days. There was a public comment period for the proposal that ended on June 17, 2011. On August 2, 2011, Director Mayorkas announced that within 30 days, USCIS will take the first step to implement premium processing for the EB-5 program. This does not mean that the program will be available then, but rather that USCIS will finish the first of multiple steps directed toward implementing premium processing for the EB-5 program.

An EB-5 investor's ability to file the I-526 petition with premium processing will depend on the regional center, in which he or she invested, obtaining USCIS's approval of its project ahead of time under the application procedures for the I-924 application. The I-924 application is currently used for obtaining approval of a regional center designation or of an amendment to an existing regional center designation. However, under the new procedures, either an entity that is just applying for its designation as a regional center could also present a project for approval of its eligibility for premium processing, or an existing regional center could apply to have its latest project approved as eligible for premium processing. A crucial factor in determining whether a project would qualify as eligible for premium processing is the extent to which work under the project can begin right after approval of the EB-5 investors' I-526 petitions, at which point the investment funds are normally released to the regional center's project. If the project is ready to that extent, then the regional center can opt to pay the additional fee for premium processing for the I-924 application, which would result in a processing time of 15 days. Otherwise, for such projects, if the regional center does not opt for premium processing, USCIS would, nevertheless, commit itself to a processing time of no more than 2 months. If the project is not ready to this extent, or the project is still only hypothetical, then the processing of the I-924 application could take up to 5 months or longer.

Once USCIS gives EB-5 investors the option to use the premium processing service for their I-526 petition, this will be a tremendous benefit to EB-5 investors from multiple perspectives. First, this will constitute a considerable improvement over the current processing time of 6-8 months for a decision on the I-526 petition. Second, there will be greater certainty that the I-526 will not be denied due to the regional center's project, since it will have been approved under the I-924 application process. Third, the availability of premium processing will improve EB-5 investors' chances to complete the process to obtain conditional permanent residence prior to the sunset of the EB-5 Immigrant Investor Pilot Program, which is the EB-5 program for the regional centers, on September 30, 2012. Fourth, for those EB-5 investors with a specific need for faster processing, such as those who are already living in the U.S. under a visa that will soon expire, or those EB-5 investors living outside of the U.S. who have plans to get their kids into school or university by a certain starting date, have a job offer in the U.S. with a certain starting date, or have other urgent plans to move to the U.S., the premium processing option for the I-526 petition will be tremendously beneficial.

When will premium processing of the I-526 petition become available? In remarks during the USCIS EB-5 Stakeholder Meeting on June 30, 2011, Director Mayorkas explained that premium processing will be phased in after USCIS accomplishes several steps in preparation. He stated, then on August 2, 2011, that the first step in implementing premium processing of the I-526 petition, will occur within 30 days of August 2, 2011. The remaining steps will presumably be accomplished over the coming weeks and months. Even once premium processing becomes available, regional centers will have to go through the process of applying for approval of their project to make it eligible for premium processing. Therefore, it will take an additional 15 days to 2 months for regional centers to obtain approval of projects that they can offer them as eligible for premium processing. So, we are looking at several months, at least, before premium processing will become effectively available to the public.

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Source: Article courtesy of our exclusive partner Anthony Olson, P.A., Immigration Law Firm (Sarasota, FL, August 21st, 2011)