By Suzanne Lazicki
Suzanne Lazicki is a business writer, EB-5 expert, and the owner of Lucid Professional Writing (www.lucidtext.com). Suzanne founded Lucid Professional Writing in 2009, and started the blog the following year as a way to keep her EB-5 clients informed about industry developments.
The USCIS website has a Check Case Processing Times page that offers processing time information for immigration forms. Enter a form number, and the system will return an “estimated time range” and “receipt date for a case inquiry” for that form.
For example, the USCIS processing time report for Form I-526 looks like this as of May 11, 2020:
This information is very important for petitioners, because it shapes expectations about normal processing. At the same time, the report is frequently misinterpreted, not least by USCIS. The report uses a methodology that does not even claim to define normal processing.
Does the USCIS Check Case Processing Times Page reflect the way that USCIS currently processes petitions?
USCIS processing time reports are meaningful to the extent that this claim, made on the report page, is true: “We generally process cases in the order we receive them.”
The reports provide months and dates that could be applied in the context of first-in-first-out (FIFO) processing, assuming that the processing time for any given case can be estimated with reference to processing for older and younger cases.
In fact, USCIS processing departs significantly from FIFO order. This is obvious for all forms with an “estimated time range” showing years between the high and low end of the processing time range. For certain forms, USCIS explicitly does not follow FIFO order.
For Form I-526, USCIS has implemented a new “visa availability approach” that arranges I-526 processing order by visa availability, resulting in country-specific processing times. The USCIS Q&A about the Visa Availability Approach promised in March 2020 that “Petitioners can check when to expect processing of their Form I-526 petition on the USCIS Processing Times page that will be revised.” However, the processing times page has not been revised as of May 2020. The report still provides a single estimated time range for Form I-526, with timing information consistent with previous reports. The report still does not reflect the reality that some I-526 petitioners can expect much shorter processing times than others based on visa availability.
Does the “estimated time range” on the Check Case Processing Times Page refer to the age of petitions that USCIS is processing now?
No, not exactly. For example, an estimated time range of 30 to 50 months does not mean that USCIS is currently processing cases 30 to 50 months old.
An estimated time range of 30 to 50 months means that 50% of petitions recently processed were less than 30 months old, and fewer than 7% were older than 50 months old.
- We calculate processing times by using historical data of completed cases.
- The estimated time range displayed is based on data captured approximately two months prior to updating the page.
- The first number in the estimated time range is the time it takes to complete 50% of cases (the median).
- The second number in the estimated time range is the time it takes to complete 93% of cases.
Therefore, it’s wrong to interpret and treat the estimated time range as a definition of normal processing. What the report explicitly provides is two signposts on the road to delayed processing. If a Form I-526 has been pending 31 months, then a reported “estimated time range” of 30 to 50 months constitutes evidence that the petition is delayed. Because the report states that 30 months is the median for recent processing – i.e. that over half of petitions processed two months prior had been pending less than that amount of time. Meanwhile, a petition pending at the high end of the range is an extreme outlier by definition: more delayed than 93% of other petitions recently processed.
Does the “receipt date for case inquiry” define the limit between normal processing and unreasonable delay?
The “receipt date for case inquiry” on the Check Case Processing Times page defines the boundary for unreasonable delay simply and only because USCIS says it does. This date does not correspond to any other definition or data for normal processing.
The Check Case Processing Times page states:
- The “Receipt date for a case inquiry” is the upper end of the estimated time range, converted to a date.
- We have posted a “Receipt date for a case inquiry” in the table below to show when you can inquire about your case. If your receipt date is before the “Receipt date for a case inquiry,” you can submit an “outside normal processing time” service request online.
The page does not explain why being outside the 93rd percentile of processing times for recently decided cases should be accepted as the boundary for normal processing.
The easiest way to discredit the “receipt date for a case inquiry” for a form is to compare it against processing data for that form reported on the USCIS Citizenship & Immigration Data page.
Consider that in December 2019, processing time reports for Form I-526 gave case inquiry dates in September 2015. This officially means that in October 2019, 7% of I-526 processed had receipt dates in September 2015 or earlier. But demonstrably, this does not reflect normal processing.
I-526 performance data shows that the number of I-526 processed from September 2015 to October 2019 vastly exceeds the number of I-526 pending in September 2015. If the process were FIFO, as claimed, all the cases pending in September 2015 would have been processed long before October 2019.
According to the data, an I-526 petition from September 2015 still unprocessed in October 2019 was not at the edge of normal FIFO processing: it was out-of-order by over 24,000 places. Clearly, that I-526 petitioner should’ve been able to inquire and complain long ago – at least as early as mid-2017, when the number of I-526 processed since he filed began to exceed the number of I-526 pending when he filed.
Petitioners have no reason beyond USCIS fiat to accept the case inquiry date as defining normal processing.
So how can we interpret the September 2015 case inquiry date published in December 2019 for Form I-525? In light of processing numbers, that case inquiry date was either a baseless fiction published merely to forestall inquiries, or it was an honest report of highly irregular processing that left many petitions behind. Either way, the date clearly did not define a boundary of normal processing for petitioners. And such analysis can be repeated for other reported receipt dates for case inquiry. Petitioners have no reason beyond USCIS fiat to accept the case inquiry date as defining normal processing. They might do better to apply a calculator to performance data for a number of petitions pending and processed, and inquire accordingly.
Also note that according to the I-526 Performance Data copied above, USCIS processed over 15,000 I-526 in FY2018, and ended the year with just over 14,000 I-526 pending. At that rate, none of those 14,000 I-526 should be left pending today. Normal processing times would be less than one year today, if USCIS hadn’t slashed productivity in FY2019 from 15,000 completions per year to 5,000 per year. I-526 petitioners should have a right to complain, for such dramatically reduced performance hardly represents “normal processing” for anyone.
Why does the “receipt date for case inquiry” move so erratically, and sometimes retrogress?
The Check Case Processing Times page gets updated at irregular intervals. The “receipt date for a case inquiry” automatically updates daily, adding one day to the date. The formula behind the date is periodically adjusted without notice. For Form I-526, for example, the formula was adjusted four times in August 2018, but then left untouched from August to December 2018. In May 2019, the report abruptly moved the case inquiry date two years back in time.
Someone who filed I-526 in March 2016 might easily get confused. His I-526 was officially marked “outside normal” processing as early as May 2018, but then inside normal in May 2019, and not outside normal again until May 2020. He was allowed to inquire about case status in 2018, but not in early 2020.
The report pattern brings us back to the possibilities mentioned above: that the case inquiry date is (a) a fiction, reported for the purpose of forestalling inquiries and complaints, or (b) an honest report of highly abnormal processing. The honest report theory is possible if USCIS for a long time simply neglected the oldest petitions, such that they were not captured by the processing times report because they were not being processed. If USCIS then started issuing decisions on abnormally delayed petitions, that would pull back the 93rd percentile of processing times for cases recently processed. Either way, normal processing is not in view.
The case inquiry date is (a) a , reported for the purpose of forestalling inquiries and complaints, or (b) an honest report of highly abnormal processing.
Why are the “historical average” processing times reported by USCIS so different from the reported “estimated time range” for processing?
The USCIS website has two pages for reporting processing time information: the Check Case Processing Times page already discussed and the USCIS Historical National Average Processing Time page. These reports give very different impressions of processing times for EB-5 forms.
The two reports differ because they report on different facts for different segments of cases:
- The low end of the Estimated Time Range on the Check Case Processing Times page claims to report on the median age of the subset of petitions processed two months previously
- The USCIS Historical National Average Processing Time page claims to report on the average age of all petitions currently pending
A high volume of incoming receipts reduces the average age of the pending inventory, but not the age distribution of petitions currently being processed. Whether or not USCIS is mainly processing the oldest forms on file will show in the report of processed petitions; not so much in the report of pending petitions. The difference between a median and an average also contributes to the difference between the two reports.
The two reports can complement each other, but neither gives a full picture. Both reports are retrospective, not prospective. Neither report offers to predict when a currently-pending petition will be processed.
How can I estimate the processing time for my petition?
USCIS admits on the Check Case Processing Times page that “We calculate processing times by using historical data of completed cases. We cannot project how long it will take to complete a case filed today.”
Indeed, the processing times page admittedly only gives information for one very limited subset of forms: those that USCIS happened to have processed two months previously. It does not reflect how long most forms have been or will be pending.
If USCIS wishes to avoid the charge that none of its reports give reliable information about current processing, it must improve its reporting.
Processing times reports provide a less reliable guide than performance data for pending and processed petitions. As discussed above, it’s possible to calculate what processing times should have been and should be on the basis of published inventory data and completion rates.
The case is complicated for I-526, since I-526 timing now depends on petitioner country of origin as well as I-526 filing date. But USCIS does not normally report country-specific information for the I-526 inventory. We are left to guess at the real processing situation by cobbling together country-specific estimates from the US State Department, data obtained through the Freedom of Information Act, and individual reports. If USCIS wishes to avoid the charge that none of its reports give reliable information about current processing, it must improve its reporting.