EB-5 Premium Processing – Good News/Bad News

Sometimes no news is good news, but in the case of premium processing of EB-5 petitions, it is not. Premium processing means that for an additional fee, USCIS will review a petition within 15 days — either approve, deny, or request additional evidence. Compared to the current 5–6 months it is taking USCIS to review EB-5 petitions, a 15 day adjudicatory period would be a turbo charge for the EB-5 program, enabling investors to obtain a green card within 4 months. So the announcement by USCIS in the spring that it would implement premium processing of “shovel-ready” EB-5 Regional Center petitions was met with great fanfare, enthusiasm and anticipation.

But as is often the case with government, the actual implementation has become bogged down. Clearances must be received; a form must be prepared; other priorities have come to the fore. During the September 15, 2011 EB-5 teleconference, USCIS director Alejandro Mayorkas was noncommittal about when premium processing will commence. His “non-announcement” greatly disappointed the attendees, including yours truly. Reading between the tea leaves, it appears that premium processing will not be implemented until at least the first half of 2012.

Waiting for the implementation of premium processing has created a deterrent effect as investors have bided their time on the sidelines. They believe that there is no point in enduring the 5–6 month review period if premium processing will soon be introduced. This belief is premised on two erroneous assumptions: 1) that premium processing is on the brink of being introduced. As discussed above, that is not the case; and 2) that a petition cannot be converted to premium processing once it has been filed. In the past, USCIS has allowed for already-filed petitions to be adjudicated under premium processing after the payment of the additional fee and indications are that this will be the case for EB-5 as well.

If you are considering a potential EB-5 investment, don’t wait on the sidelines for “good news” on premium processing. It may be a long time coming.