According to USCIS, this new operational approach aligns with other visa-availability agency adjudication processes. It is more consistent with congressional intent for the EB-5 Immigrant Investor Program. It also increases fairness in the administration of the program.
USCIS Deputy Director, Mark Koumans, said that changing their approach from a first-in, first-out adjudication process to prioritize petitions connected to individuals from countries where visas are currently available better aligns with the congressional intent for the EB-5 program. Furthermore, it makes it more consistent with other USCIS operations. He also added that this new approach increases fairness, allowing qualified EB-5 petitioners from traditionally underrepresented countries to have their petitions approved more timely to receive consideration for a visa.
This operational change is consistent with the agencyís processing of Form I-130, Petition for Alien Relative, in cap-subject categories. The new visa availability approach gives priority to petitions where visas are immediately available, or soon available, and will not create legally binding rights or change substantive requirements. Applicants from countries where visas are immediately available will now be better able to use their annual per-country allocation of EB-5 visas. The new visa availability approach will apply to petitions pending as of the effective date of the change. USCIS will implement the visa availability approach on March 31, 2020.

Countries, such as mainland China, might be negatively impacted by this change. Previously, applicants, with no chance for adjustment of status or scheduling a consular interview, had their I-526 petitions approved simply due to the relatively early date of their I-526 filing. As a result, applicants from countries where there is visa availability had to wait unnecessarily long periods. For example, as of today, USCIS is posting 32.5 to 49.5 months for current I-526 processing times. A couple of years ago, this number was significantly lower. We expect this change, when implemented, to bring in processing times for applicants with no backlog.