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EB-5 Petition Denials: What to Do Next?

EB-5 Petition Denials: What to Do Next?

The EB-5 visa’s popularity has noticeably increased in recent years, with thousands of foreign nationals participating in the EB-5 investment program and obtaining U.S. permanent resident status. Even though many investors have obtained U.S. green cards through the EB-5 program, foreign nationals interested in the EB-5 industry should note that simply making an EB-5 investment does not guarantee that the investor will receive permanent residency. United States Citizenship and Immigration Services (USCIS) examines every EB-5 investment to determine whether it complies with its guidelines. USCIS regulations govern the way EB-5 investments can be made, the kind of businesses that are eligible for the EB-5 program, and many other facets of the EB-5 industry.

To ensure compliance with USCIS guidelines, EB-5 investors must work closely with experienced immigration counsel and do thorough research on the EB-5 program before investing. During the EB-5 process, investors must submit Form I-526, Immigrant Petition by Alien Investor, and Form I-829, Petition by Investor to Remove Conditions on Permanent Resident Status. These visa petitions determine whether an EB-5 investor will receive a U.S. green card.

Occasionally, despite an investor’s best efforts, USCIS denies their visa petition. In this article, we explain how investors can respond to a USCIS denial.

Next Steps After a USCIS Denial

If an EB-5 investor receives a petition denial, this does not necessarily mean that they will never be able to immigrate to the United States. First, they should read the denial notice carefully to find out why USCIS found the visa petition deficient. The investor’s immigration counsel should also review the denial notice.

If an EB-5 investor and their immigration counsel possess evidence that could likely persuade USCIS to reconsider the visa petition, they might decide to file a legal motion requesting the agency to reevaluate its decision. Of course, a legal motion must be accompanied by an exhaustive, detailed explanation of why the visa petition is valid. If an investor’s legal motion is unsuccessful, they may instead file an appeal of the petition denial.

EB-5 investors should also keep in mind that they will likely be able to file a new EB-5 visa petition. If, for instance, an investor’s petition was denied because the EB-5 project was not USCIS-compliant, they can simply file a new petition with a more reliable project.

Common Reasons for USCIS Denials

Of course, the best course of action is to avoid a USCIS denial in the first place. In many cases, EB-5 petitions are rejected because the investor failed to reach the minimum investment threshold. As of June 22, 2021, the minimum investment amounts are $500,00 for targeted employment area (TEA) projects and $1,000,000 for non-TEA projects. USCIS is also strict about enforcing the at-risk requirement, which entails that EB-5 investors cannot have a contractual right to repayment; they must be open to either profits or losses.

Moreover, the information provided in EB-5 visa petitions must be as accurate and up-to-date as possible. For instance, Form I-526 must include detailed information on the EB-5 project’s business plan, including its financial projections and capacity for job creation. These figures must be presented consistently across the petition.

EB-5 investors must also take great care to provide the needed source-of-funds documentation in Form I-526, tracing the EB-5 investment capital back to its source. USCIS must be able to ascertain that the EB-5 investment funds were sourced legally, and preparing this evidence is one of the most important aspects of the EB-5 process.

The EB5 investment process may bring unexpected challenges or delays; still, as long as an EB-5 investor plans carefully and works with competent immigration counsel, they will likely be able to obtain U.S. permanent resident status.