USCIS Seems to Predict 88% Failure Rate in the EB-5 Investor Program

By David North on April 4, 2012

If you compare its numbers in two different governmental publications, U.S. Citizenship and Immigration Services (USCIS) seems to be predicting that 88 percent of the applicants for EB-5 investor visas will not, in fact, get the green cards that they had been promised for their half-million-dollar investments.

There is also a possibility that this is not a prediction of program demise so much as a case of the front-office promoters of this highly controversial program not talking to the green-eyeshade types in their own agency who deal with the Federal Register.

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As background, the EB-5 program allows aliens who otherwise would not be qualified to become immigrants to buy their way into the United States by making half-million-dollar investments in government-approved, but not guaranteed, projects. The initials relate to its being the fifth of the employment-based programs in the immigration act.

Getting a green card in this way is a two-step process. In the first, the alien investor gets a conditional residence permit by either investing, or "being in the process of investing" in the United States, usually at the half-million-dollar level. Two years later, if the investment is still in place, and the investor is still interested in living in the United States, and if he or she has behaved in the interim, the investor can convert the conditional card into a full-fledged green card, marking permanent resident status.

You would think that, if the program were running smoothly, there would be only a minor drop-off between the first process, the approval of an I-526 form, and the second process, filing an I-829 form, which calls for, in immigration-speak, "the removal of the conditions".

But smooth is apparently not the word. The agency reports that there will be more than eight-and-a-half times as many initial applications (I-526) for the program as there will be applications for the green card two years later. This is either a remarkable prediction of program collapse or another indication that USCIS has trouble with numbers.

As background, the agency and its director, Alejandro Mayorkas, are enthusiastic about the EB-5 program, and the leadership's zeal in pushing staff to say "yes" to various EB-5 applications has been noted in a CIS Backgrounder on the subject.

To return to the numbers, the agency reported in January that it had received 3,805 initial applications (I-526) for the program in fiscal year 2011, but predicts that they will receive only 441 of the follow-on (I-829) petitions a year in the future. That would suggest an 88 percent decline between the initial filing and the subsequent filing, which can take place as early as two years later.

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Now, historically there has always been a substantial drop-off between the initial filing of the I-plan-to-invest-half-a-million document, and the I-have-maintained-a-half-a-million-investment-for-two-years application filed later. But the drop has never been this sharp.

Reasons include aliens not completing their investments, investments ruled to be either bogus or not in keeping with the rules, middle-men handling the investments found to be wanting (sometimes indicted), and the investors deciding that they do not really want to live in the United States after all. If any of these things occurred the I-526 would have been filed, but the I-829 would not be.

A statistical admission/prediction that 88 percent of the investors will not complete the process and get the promised green cards is a remarkable burst of honesty in a program that is big on hype and promotion. The other possibility, as I will show, is that the agency's front and back offices were not in touch with each other.

The 3,805 I-526 applications (not approvals) filed in FY 2011 were announced, with a fanfare, at a USCIS "stakeholders" meeting on January 23, 2012, and can be seen on the 8th page of this unpaginated document.

Months later, in the March 13 Federal Register there was a notice that the agency wanted comments from the public about its plans "on information collections" via the I-829 form; a routine form redesign operation. As is always the case, the FR carried an agency estimate about the annual usage of this form in the future, with this text: "An estimate of the total number of respondents and the amount of time estimated for an average respondent to respond: 441 responses at 1 hour and 5 minutes (1.08 hours) per response."

So USCIS thinks that the form will be used 441 times a year even though a nearly matching document was used 3,805 times in 2011. The 441 estimate, by the way, appeared in print almost two months after the 3,805 figure appeared, so one would think that estimate must have been made with full knowledge of the "stakeholders' presentation".

Even odder, the always pro-migration trade paper of the immigration bar, Interpreter Releases, in its March 19 issue (p. 598) reported in connection with the Federal Register notice that "USCIS estimates that 200 people use this form annually". Maybe the always-well-informed IR has even more reasons to be doubtful about the utility of the EB-5 program than I have.