The Rural Bias Built Into EB-5’s DNA | Episode 239
Following their article exploring the rural bias built into EB-5’s DNA, Mona Shah and Rebecca Singh further delve into the processing-time gap between rural and urban I-956F applications. Rural projects are sailing through USCIS review in around 8 months whilst urban projects wait significantly longer. This is no administrative accident, but rather congressional intent embedded in the EB-5 Reform and Integrity Act of 2022. But what does this mean for developers and investors today?
The pair condense the most pressing queries they are hearing from clients into six main questions. Is the processing gap unlawful discrimination? Does choosing a rural or urban project affect EAD and advance parole time? And, what happens if investors file before the September deadline, but the project is not approved until 2027?
However, amongst the uncertainty, one thing is clear. Processing speed is merely a single factor for projects, not the whole picture. The projects resilience, exit strategy and likelihood of capital return matter just as much, if not more, than a speedy approval.
As the September 2026 deadline swiftly approaches, this episode is essential for investors and develops seeking clarity in the EB-5 programs complexity.
“Really, for investors, the honest answer for all of these questions is processing speed is really only one input, not the only one. You really have to take all the factors into consideration.” – Mona Shah
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Transcript
This transcript was produced using AI and subsequently edited for style and clarity. The edits do not alter the substance of the speaker’s remarks
Mona Shah
(0:59) Welcome back to the programme. Rebecca and I recently published a two part commentary on what we’re really calling the rural bias built into EB-5’s DNA. Today, we want to walk our listeners through why the gap between rural and urban I-956F processing times is not an administrative accident.
(1:22) What can we do about it? For those who prefer TEA projects, will they see any difference in the timing for EADs? And why the September 2026 grandfathering deadline makes this quite urgent?
(1:35) Rebecca, do you remember how Senator Chuck Grassley spent close to a decade, because, you were in the EB-5 programme at that time, but arguing how the programme had been captured by urban developers with benefits flowing to Manhattan and LA and Miami, penthouses, luxury condominiums, rather than to what he thought was the real, the real point of the EB-5 programme to the rural and economically distressed communities?
Rebecca Singh
(2:03) Yeah, Mona, I mean, I remember starting and everyone talked about how are you getting a TEA in Manhattan? Yeah, so I mean, his perseverance really came through, right?
Mona Shah
Well, we’re still getting a TEA in Manhattan.
(2:16) We get it. (2:17) We even have one in Times Square. (2:19)
Rebecca Singh
But yeah, yeah, yeah.
(2:22) So TEAs are still there for cities. But I mean, we’re really seeing rural come through, right, in the in the sense that the EB-5 Reform and Integrity Act, which came out in 2022, and I think everyone knows it by RIA now, really codified that position through rural set-asides. We’re seeing that the reserved category for rural actually has a higher percentage set aside as well, in addition to priority processing.
(2:49) And then we’re also seeing, obviously, the higher investment thresholds for those in non-distressed areas.
Mona Shah
(2:55) Yeah, well, I think that, well, we can discuss that further down, Rebecca, but I think the priority processing is only the rural and infrastructure.
Rebecca Singh
(3:03) Yeah. Yes, So I mean, that really hits, hits home, right?
(3:07) Because we’re seeing that with, you know, we’re actually seeing those numbers. It’s not something that’s made up. (3:12) We’re seeing IUSA had an industry report that came out 2024, and we’re seeing averaging processing times for rural projects at eight months versus those in high unemployment areas, what we call TEA areas.Those were running at about 13 months.
Mona Shah
(3:31) I think we can add another six months or at least four months on both, because we are really seeing rural projects under a year still being processed, maybe nine, nine to 12 months, but the TEA are definitely taking far longer.
Rebecca Singh
(3:48) Yes, unfortunately. I mean, we’ve seen it ourselves, the difference, even in not just I-956F petitions, but we’re also seeing that in the petitioner, the I-526E petitions.
Mona Shah
(4:02) Well, the September 30th, 2026, grandfathering deadline, it really fits a statutory clock if, unless, we can lobby for that to change, but that’s, that’s a topic for another podcast.
Rebecca Singh
(4:17) Yeah, so Mona, you know, maybe we can narrow this down to possibly, what, six questions that we were getting from developers and investors. And we want to do this in a way where investors and developers, you know, what they’re actually going through or what they’re actually experiencing it.
Mona Shah
(4:37) You mean you’re putting all of those questions into six categories? I thought there was a lot more than six
Rebecca Singh
(4:41) I thought there was a lot more than six. (4:42) Oh, well, we have more podcasts coming through. (4:45) So, but Mona, yeah, let’s just see, let’s take it in turn and see what we can give to our listeners out there.
Mona Shah
(4:51) Let me throw it out to you first. Rebecca, why are rural I-956F processing really so much faster than urban and HUA, the high unemployment areas? Is this just USCIS being inconsistent?
Rebecca Singh
(5:09) Oh, no. As we said before that, you know, we’re seeing the numbers and they’re actually being documented. As we saw in the report from IUSA, they covered, you know, 11 regional centres operating multiple I-956F applications.
(5:26) And between June 2022 and August 2024, as we said earlier, we’re seeing the rural projects are averaging faster processing times than the TEA projects.
Mona Shah
(5:38) You know, the critical point here, I think, for our listeners to understand is the cause. And that’s one of the purposes of our commentary. And it’s the purpose of this podcast, so that people actually understand, because then once they understand the cause, they’ll, they kind of understand the fix or the lack thereof.
(5:58) The gap traces back to explicit statutory declaration direction in RIA. It’s really going back to what Grassley wanted. Congress created a reserved visa set aside specifically for rural projects.
(6:12) And then they went and told USCIS on an explicit basis, emphasis on explicit, to treat them as a priority category. Rural TEA qualification is also much more simpler to verify geographically. You know, the designation, when you’re doing high unemployment, it’s just so much more work.
(6:34) And everybody likes something which is less work, right?
Rebecca Singh
(6:38) Yeah, exactly.
Mona Shah
(6:39) And then the other thing is there’s a higher volume on the urban side, because far more people have opted for the urban TEA for reasons we’re going to discuss. And the result is the rural cases are going through much faster.
Rebecca Singh
(6:57) Yeah, but it’s interesting to say that, Mona, because we have seen so many more rural projects that came out after USCIS brought in, you know, our Congress brought in priority processing. So I think between when we first started and coming now after RIA 2022, we’ve seen a jump in rural projects. And not only just IIUSA, EV5investors.com also saw multiple rural projects being approved in just two to four months.
Mona Shah
And some crazy ones as well, actually.
(7:31) Again, this is something we’re going to discuss because the fact that they’re approving them quickly doesn’t have anything to do with the actual viability of the project as far as financials are concerned and location and all that.
Rebecca Singh
(7:44) So, Mona, you know, we have many urban developers out there and they’re saying this is discriminatory. Is this processing disparity actually unlawful?
Mona Shah
(7:55) Yeah, quite a few of our developers are asking this. Well, quite frankly, this is really where precision matters. You know, the APA, and for those who don’t know, I know I get told off for saying acronyms on the podcast.
(8:07) APA, which we refer to a lot, is the Administrative Procedure Act. And this is really one of the only federal guidelines which we keep on referring back to. But the APA really prohibits agency action, USCIS action or IPO action that is arbitrary, capricious or an abuse of discretion.
(8:27) But is the agency’s deferential treatment grounded in explicit statutory direction? That’s the issue here. Doesn’t the RIA tell you or tell them?
(8:39) Yes, it does, that they can go forward. So we don’t really, we can’t really say that if they are being discriminatory and that it is arbitrary and capricious.
Rebecca Singh
(8:50) Yeah, but I mean, you would think that all projects should be treated fairly.
Mona Shah
(8:54) All projects now post RIA are not the same.
Rebecca Singh
(8:58) Yeah, yeah. But there’s no dispute on the commercial effect of it. I mean, this, you know, you could go to town on marketing once you have that I-956F approval.
Mona Shah
(9:10) Yeah, it’s become a marketing credential, you know?
Rebecca Singh
(9:15) Yeah. (9:15) Yeah, I mean, I can’t tell you how many investors already come to us saying that I just want I-956F approved projects.
(9:23) I mean, this shows investors that USCIS has vetted the business plan, the job creation model, and even the offering structure and financing. So they don’t have to worry about, hey, do I need to go through this again when I file my petition, my I-526E? There’s no re-review of the project documents.
(9:42) They’re just looking at their sources of funds and their eligibility.
Mona Shah
(9:46) Yeah, it’s definitely a material advantage. And it’s obviously forcing people to do things to try and speed up the approval process. But you can call it discrimination, call it design.
(10:00) The effect is on fundraising is the same, really, isn’t it? Urban and high unemployment developers are competing in a capital-raising market for the same investors, really, whereby statute, you know, their path with the credentials is no longer there.
Rebecca Singh
(10:17) Yeah, yeah. Because they’re not looking, like you said, and again, we’ll go into this more detail, but it’s the viability of the project. I think clients are just asking, well, how can I get my green card the fastest?
Mona Shah
(10:29) I know. I can already hear all of those developers with rural projects saying, but hey, my project is viable.
Rebecca Singh
(10:36) I know, and no doubt there are plenty out there that are. But I think, again, it’s investors just need to realise they need to look into the documents and not just going blindly. Right, right.
Mona Shah
(10:47) But before we go into that, Rebecca, the first thing that, or rather the second thing that a lot of people are asking us is that if I go for a TEA instead of a rural, because I’m okay with time, I’m all right, I’m on an H-1B, I can wait. But what about my EAD and my advanced parole? Say I’m on an H-1B or I’m on an E-2 or something.
Rebecca Singh
(11:08) Yeah, so this doesn’t matter whether you go in a rural project or a high unemployment or TEA project. Good to know. Yeah, so I think this is one of the most important practical clarifications we can make to investors out there.
(11:22) There’s no grassy queue. It’s the same timeline throughout. So if you’re on an H-1B, F-1, L-1, any non-immigrant visa in the United States, when you file your I-526, you can concurrently file for adjustment of status.
(11:38) And then that gives you the ability to apply for your EAD, so your work permit or your advanced parole, which is your travel permit at the same time.
Mona Shah
(11:48) Yeah. So, you know, back, I think in the article and stuff, we did write that current processing times for EAD and AP are approximately three to four months because it has been that forever. But I think we are seeing a change in that, right?
Rebecca Singh
(12:04) Yes, definitely changed it. Yeah, three to four months, imagine. That has changed, I would say, about a year ago.
(12:12) We’ve seen then the processing times increasing to five months. And as of today, we’re looking at about seven months.
Mona Shah
(12:20) Oh, my God.
Rebecca Singh
(12:20) Could be longer. And then USCIS brought in this whole new way of how they’re reviewing applications. So that time has increased.
Mona Shah
(12:29) But isn’t that new way related only to the 526 and not to the concurrent filing? Because the concurrent filing is the same. So let me just clarify.
(12:39) So, for example, just so I know that a lot of people listening may be confused at this. Whether you invest in a geothermal energy in rural Utah or you’re an investor in a branded hotel in midtown Manhattan, there isn’t any distinction on when you get your EAD and AP. Yes or no?
Rebecca Singh
(12:59) No.(13:00) Yeah, so it’s the same. (13:01) It’s the same timeline.
Mona Shah
(13:02) Secondly, if there is a backlog for India, which comes out maybe next month and you’ve already the month following, we know next month is good, and you’re filing correctly now, concurrently, does it make any difference whether you’re in a TEA or a rural?
Rebecca Singh
(13:20) No. Well, so this is where, again, it depends. So as long as you’re current under the Visa Bulletin, under any category, you can file concurrently.
(13:32) The difference is going to be if there is a backlog. And is there going to be a backlog? And it could be a backlog in any category, right?
(13:39) It doesn’t need to say that rural, TEA, and infrastructure, all three will be in backlog. It could be one category. So that’s going to be interesting to see are both in backlog?
(13:50) Is one in more backlog than the other? So that’s going to be interesting. But if in any category goes into backlog, then you have the issue of not being able to file concurrently unless USCIS changes its stance.
Mona Shah
(14:04) Yeah.
Rebecca Singh
(14:04) I think that I think is very important for investors to understand. And I think also, Mona, if the F is not approved, then again, it’s going to be a longer adjudication time on the I-526E. I’ve seen I-526E approvals coming in faster for rural projects.
Mona Shah
(14:25) Yeah, we have, that’s for sure. All right, next question.
Rebecca Singh
What if a project developer, they have an I-956F that is not approved until 2027?
(14:36) Say if investors did file their I-526E before September 2026, but that project is still pending, the F is still pending, what happens?
Mona Shah
(14:46) Okay, so this scenario, quite frankly, is not hypothetical, even though we’re kind of putting it as hypothetical, because as of today, we don’t have any changes in the law yet. But as of today, the RIA states that you are grandfathered only if you file before September 2026. And we’re expecting a bunch of urban and high unemployment projects who filed or who are filing their I-956F applications, which is the I-956F applications for anyone listening is the exemplar applications, the project part of it, the part that has to be approved before the investors get their part approved.
(15:26) There is a documented probability of approval arriving late in 2026 after the September deadline or in actual 2027. So, Rebecca, I think we’ve discussed this like multiple times, the grandfathering must be for the developers as well as the investors.
Rebecca Singh
(15:48) Yes, and it can’t be just based on approval. (15:50) It has to be upon filing. (15:52) Exactly.
Mona Shah
(15:53) I mean, especially when we know that the delay is going to be likely.
Rebecca Singh
(15:59) Yeah, yeah. So I think it’s the problem is, though, our investors, again, this goes back to the marketing, our investors wanting to invest in projects that are just filing their F approval of filing.
(16:13) And so, you know, it’s still I mean, the legal picture still remains uncertain. But I think and again, this is what I am basing this on that once whether an I-956F or your if you’re an investor, you’re filing your I-526 or I-526E that in my sense of reading it, you would be grandfathered in and the fact that if your I-956F for the project has been filed and you received the receipt notice, then you’re filing I-526E, at least the project was filed prior to you filing your petition, right?
(16:49) Because the regulations allow that.
Mona Shah
(16:52) Because that’s the other issue here. So if the project approval, the F, is filed before the grandfathering, then, you know, the investors should also be technically grandfathered, even if they file afterwards. So I think that’s something which I know we’re going to come back to because that’s the unsure part.
(17:10) And the harder part really is going to be on the marketing for investors, for developers. A project with an approval, let’s say in December of 2026, they’re going to be marketing to investors in a post-grandfathering environment where we really don’t know where the rules, investment thresholds, programme structure, where they’re going to be.
(17:32) But that we can discuss in future podcasts, I think. But let me ask, for all of those developers who are really panicking, what can they do? So the first question, of course, is can I sue USCIS?
(17:46) Is there a mandamus or an APA unreasonable delay claim that will work here?
Rebecca Singh
(17:51) Well, as you know, it is the U.S. And litigation is the obvious remedy. I think everyone tries. It’s a litigious country and they always want to try to sue.
(18:02) But I don’t know. I think given the statutory underpinning of the rural priority system, it’s probably unlikely to succeed.
Mona Shah
(18:11) Yeah, I don’t. I agree. I think, you know, any court which is going to be evaluating unreasonable delay, they’re going to apply what we call a six-factor track analysis.
(18:22) But I don’t want to get technical here. But one of the factors, one factor which is really unhelpful to urban developers is that a court order prioritising an urban or a high unemployment project disadvantages others waiting in the same queue. And the deeper problem is, is that the rural prioritisation is actually traceable back to explicit congressional direction through RIA.
(18:50) So I don’t think courts are going to second guess congressional intent here.
Rebecca Singh
(18:56) Exactly. So at the end of the day, I mean, we do this even with other petitions, that litigation should always be considered a last resort.
Mona Shah
(19:05) I agree, I agree.
Rebecca Singh
(19:06) Yeah, I mean, I think, I mean…
Mona Shah
(19:08) I mean, really, really for cases involving extreme delays, you know, something which is well beyond the documented normal range. Exactly.
Rebecca Singh
(19:16) And we’ve seen it. seen courts, they’ve caught on now. (19:19) There has been successful mandamus claims out there.
(19:22) And a lot of attorneys will, you know, will probably, you know, not agree with us. But we’ve also seen the opposite. We’ve seen them come back to and say that, well, there’s so many of these petitions being filed now.
(19:34) Is it really worth it?
Mona Shah
(19:35) Yeah, I mean, I don’t, I don’t advocate doing a mandamus for this. I know people have been. I think, I mean, it’s not the best, but perhaps congressional engagement is probably better or maybe, and we have seen this come through, a well-supported, like documentary-supported expedite request.
(19:55) That seems to have been working.
Rebecca Singh
(19:57) Yes, yes. I think if we, with that, and then, like you said, with having, getting involved, I think AILA, all those, and other associations that are out there, getting them, getting involved through them would probably, you know, having all our voices heard together, I think would be the best route. (20:18) Again, we’re talking about congressional intent.
Mona Shah
(20:18) Again, we’re talking about congressional intent. But OK, let’s, let’s jump quickly to one of the questions.
Rebecca Singh
(20:23) So I think it’s our last question. But yeah, so, but given all this, Mona, so it really all just comes down to this. Mona, should investors just pick rural projects?
(20:36) Is it faster processing the entire game?
Mona Shah
(20:40) That’s a very good question. And it’s a good question that investors really should be asking. But, you know, processing speed measures how quickly, you know, USCIS reviews a file, but it doesn’t measure, as we’ve stated earlier, the underlying economic resilience of an investment, or the strength of the exit strategy, or the probability that the investor’s 800 will be repaid.
(21:00) And we’ve seen a tonne of projects, Rebecca, where people don’t care, they will go into high unemployment, they don’t care how long it is, because it’s their friend’s project, or someone they trust, and they know they’re going to get their 800 back. And they’re like, fine, I’ll wait an extra few months or a year, or however long it takes, but I want my 800 back for sure.
Rebecca Singh
(21:19) Yes, and I think not even just family and friends, I think we’ve seen investors, we’ve seen investors that came in and really conduct their own due diligence. And they go out and ask the questions and the financial parts of it is important to them. And not just how fast can I get the green card.
(21:37) So we’ve seen that as well. And like I said, we’re not knocking rural projects out there, because there are really good ones. I mean, we’ve seen someone who’s looked at all the types of projects.
(21:49) I mean, I think one of our investors took, what, two months and delved into rural high unemployment area projects. It was just about what was the right fit for him. And he still chose rural.
Mona Shah
(22:00) Yeah, I mean, there are some very good rural projects out there. I mean, we are looking at, I mean, if this war continues, we’re really looking at going into a recession. And that’s going to change the complexion of a number of projects.
(22:14) I can see that happening. I know all of these are topics for the future. And we can tell our audience that we have got a bunch of people who could come on to our future podcasts who are going to talk to this, because we do want to educate the public out there.
(22:30) The EB-5 programme has really improved significantly since, you know, RIA’s enactment. But processing times, the rural bias, you know, there’s a lot of things happening out there right now, which I think people should understand why it was there before they really make decisions. We’re not advocating for litigation, bearing in mind that it really is congressional intent for rural projects to go faster.
(22:56) I think here it really is up to the investor themselves. Do they prefer a non-rural project, an urban TEA project? And then if that’s the case, then I feel they just need to understand it is going to take longer to adjudicate.
Rebecca Singh
(23:12) Yeah, but I think the real urgency, Mona, for investors is the September 2026 deadline. You know, that’s coming quickly. And investors need to make sure they get their petitions filed if they want to be grandfathered in.
Mona Shah
(23:26) But Rebecca, we’ve been doing this many years and we know how on the 11th hour, everything could change.
Rebecca Singh
(23:33) Yes, yes. So yeah, we’re getting prepared for that. I mean, I think the first is for Indian investors and Chinese investors, the backlog.
(23:44) And then thereafter, the 2026 September deadline. So you could say we’ll be ready, but it’s always a mess then.
Mona Shah
(23:54) I know, I know. Really, for investors, the honest answer for all of these questions is processing speed is really only one input, not the only one. You really have to take all the factors into consideration.
(24:06) But please stay tuned to this series where we will keep on bringing you the latest in what’s been happening in EB-5.