Starting the EB-5 process often involves a mix of careful planning and uncertainty. Investors gather financial documents, choose a project, then wait for U.S. Citizenship and Immigration Services (USCIS) to process their application. Sadly, some EB-5 petitions may not get approved.

For many people, this moment can feel frustrating, especially because they have put in time and money. However, understanding the reasons behind a denial can help you prepare better or fix what went wrong. In this article, we will explain the most common reasons why an EB-5 petition might get denied and what to do if that happens.

Common Causes for EB-5 Petition Denial

Knowing why USCIS might not approve your EB-5 petition is the first step to avoiding costly mistakes. Most denials happen because of issues with documents, the investment, or the rules around job creation and eligibility. That said, below is a breakdown of some of the most frequent causes.

1. Incomplete or Incorrect Documents

USCIS has strict documentation requirements for complete and clear records. Your application must include forms like the I-526 or I-526E, personal identity records, proof of investment, business plans, and source of funds documentation. If even one required document is missing, or if a form is outdated or filled in the wrong way, your petition may be denied.

In some cases, investors leave out key pages of tax returns or fail to translate documents into English. In others, they submit handwritten forms or use copies that are hard to read. Even minor errors, like not signing a form or using the wrong dates, can cause issues because the officers will not guess or fix mistakes for you.

2. Source of Funds Problems

The EB-5 program requires you to prove that your investment money came from legal sources. This process is commonly referred to as source of funds. Here, the reviewing officers want a full and clear record showing how you earned, transferred, and invested the funds.

If this money trail seems unclear or suspicious, the petition may be denied. Some common issues that can happen when proving source of funds include:

• Not showing enough evidence to explain how you earned the money.
• Using funds from gifts or loans without providing full documentation.
• Not showing where a donor or lender got their money.
• Sending money through too many different accounts without a clear paper trail.

3. Job Creation Issues

The EB-5 program is not just about investing money because you are required to create at least 10 full-time jobs for U.S. workers.

You are expected to provide solid numbers, timelines, and explanations for this. If your plan is vague or unrealistic, or if it does not explain how the jobs will be created, your petition might get denied. Setbacks often happen if you:

• Submit business plans that are too general or missing key job details.
• Rely on indirect jobs, but don’t provide proper economic models.
• Assume future jobs will come, but don’t show how or when.
• Work with projects that have delays or unclear hiring plans.

4. Problems With the Investment

The minimum EB-5 investment amount is $800,000 for targeted employment areas (TEAs) and $1,050,000 for other areas. The investment must be “at risk,” which means there can be no guarantee of return or refund. Also, the funds must go into a real business that creates jobs, not just sit in a personal account or be used for passive investment.

Some common mistakes here include:

• Investing less than the required amount.
• Not transferring the funds properly. For example, money stuck in escrow for too long.
• Working with a business that does not qualify as a new commercial enterprise (NCE).

5. Regional Center Problems

If a regional center loses its USCIS approval, misuses funds, or fails to meet program rules, your petition could get denied, though there are some protections in place to protect investors in cases like these.

Some signs of trouble include:

• Regional centers that stop responding to investors.
• Projects that are delayed or do not start as planned.
• Incomplete or misleading business plans.
• Lack of updates about fund use or job creation.
• Losing designation during the I-526E or I-829 process.

6. Children Aging Out or Getting Married

The EB-5 program allows you to include your spouse and unmarried children under age 21 in your petition. However, age and marital status are strict limits. If your child turns 21 or gets married before the Green Card is issued, they may lose eligibility.

In some cases, the Child Status Protection Act (CSPA) can freeze a child’s age during part of the process, but this does not cover every case. Another issue arises if your child gets married during the process. Even if they were under 21 when you filed, getting married disqualifies them from receiving a Green Card through your petition.

7. Other Reasons

EB-5 investors may face denial for other reasons, such as health reasons, previous criminal convictions, security-related concerns, or former immigration application violations. Be sure to review all the personal requirements and qualifications of the EB-5 program to ensure you meet them.

Steps to Take After an EB-5 Petition Denial

Getting a denial on your EB-5 petition can feel disappointing. But it does not mean the journey is over. The key is knowing what steps to take and doing them the right way.

Nonetheless, before taking any action, it is a good idea to speak with an immigration attorney to guide you on avoiding the same mistakes. Below are common steps that you can take after an EB-5 petition denial.

1. Review the Denial Notice

The denial letter explains why your petition was denied. It points out the specific problems, such as missing documents, unclear source of funds, or job creation issues. Go through the notice and try to match each point to the documents and forms you submitted.

You can also share it with your attorney and ask them to explain each part. They can help you understand whether the issue is something that can be fixed, appealed, or whether a new petition is needed.

2. File a Motion to Reopen or Reconsider

If your petition was denied due to missing information or a mistake, you have the option to file a motion to reopen or a motion to reconsider. A motion to reopen is used when you have new evidence or documents that you did not include the first time.

On the other hand, a motion to reconsider is used when you believe the officer made a legal or factual error in reviewing your petition. You must file these motions quickly, usually within 30 days of the denial notice.

3. Appeal to the Administrative Appeals Office (AAO)

If you think your petition was denied in error, and a motion is not enough, you can file an appeal with the AAO. Here, you must explain why the denial was incorrect and provide clear support. The AAO will then look at your case again and decide if the denial should be reversed.

This process can take several months or longer, depending on the case. If the AAO agrees with you, they may approve the petition or send it back for a new review. If they do not agree, they will let you know in writing.

4. File a New EB-5 Petition

For denials based on problems that cannot be fixed with a motion or appeal, starting over may give you a better chance of success. When you file a new EB-5 petition, you get to correct all the issues that led to the first denial.

You can include missing documents, provide a better business plan, or invest in a different project. This time, you may want to work with a different legal team, financial advisor, or regional center, depending on what went wrong the first time.

How to Avoid an EB-5 Petition Denial in the Future

An EB-5 petition denial can feel overwhelming, but it can be easily avoided by taking all the right steps. Let’s walk through how you can prevent a denial in the first place.

1. Prepare Strong Documentation

It is vital to ensure that all forms are completed correctly and that your application includes the necessary supporting documents. You can improve your chances by:

• Using the official USCIS website to download the latest versions of each form.
• Reviewing instructions for every form and double-checking for errors.
• Submitting translated copies of all foreign-language documents, with a certificate of translation.
• Keeping a checklist and going through it before sending your application.

2. Choose the Right Investment

Investing in a project with no clear plans to create jobs will likely lead to a denial. Therefore, you need to conduct due diligence to avoid projects that do not demonstrate a clear path to success.

You should also work with a regional center that has a strong reputation and history of EB-5 approvals. Furthermore, you can partner with experts like attorneys, financial experts, and business advisors who can help you assess the risk and viability of potential projects.

3. Be Proactive When Filing for Your Children

To avoid the denial of your child’s Green Card application, you can do the following:

• File your petition as early as possible if you have children close to age 21.
• Track USCIS processing times and look for options to speed up your case.
• Talk to an immigration attorney about using the CSPA or separate filings for your child.

4. Stay Updated

The EB-5 visa program is subject to changes in law, policy, and regulations. It is essential to stay informed about any updates to the program that could affect your investment. Monitor USCIS updates, follow industry news, and consult with your attorney to know regulatory changes that could affect your petition.

Work With EB5AN to Minimize EB-5 Petition Denial Risks

USCIS may deny EB-5 petitions for several reasons, but most of these problems can be prevented with careful planning. If you’re thinking about applying, take the time to learn the requirements, gather strong documents, and work with professionals who know the EB-5 process.

At EB5AN, we understand the ins and outs of getting a Green Card and are committed to providing expert support throughout your EB-5 journey. We have helped more than 2,700 families from over 70 countries become permanent U.S. residents.

Reach out to us today for free, and let’s work together to make your EB-5 petition successful.