The United States Citizenship and Immigration Services (USCIS) website regularly updates its statistics regarding the number of I-526 and I-829 petitions that are approved.

Generally speaking, the approval rate for an I-526 petition is from about 75% to over 80%.

Because it is assumed that an EB-5 Investor who receives approval for the I-526 petition, will apply for conditional permanent resident status, the approval rate for the I-829 petition is around 90% and above.

In this article we will take a look at the EB-5 Investor Program in greater detail and provide insights into how you can obtain your EB-5 Investor Visa in the quickest possible time.

As an Immigrant Investor, having this information at your disposal will help streamline the EB-5 Visa Application Process between you and your Immigration Attorney.

What Is The EB-5 Visa Program?

The EB-5 Visa Program is an opportunity that the U.S. government has provided to foreign investors who want to relocate to the United States and obtain permanent residency.

The program requires a minimum investment of $1,050,000 for standard investments and $800,000 for an investment into a new commercial enterprise that is doing business in a targeted employment area (TEA).

In addition, an immigrant investor must be able to demonstrate that their investment has created or preserved 10 full-time jobs for U.S. workers that will last a minimum of two years.

What Do The Statistics Tell Us?

The USCIS is the U.S. Federal Government Agency that administers and processes nearly all the forms and petitions that relate to the EB-5 Immigrant Investor Program.

In addition USCIS processes all other citizenship and immigration visas, such as the H-1B or refugee status applications.

The USCIS maintains current and historical records regarding the processing times and approval rates for each petition.

This agency publishes both quarterly and annual EB-5 petition processing statistics on its Immigration and Citizenship Data page for Forms I-526, I-485, I-829 and all other related EB-5 Visa forms.

The actual success rate for EB-5 investors fluctuates as it is influenced by factors such as operational changes within the Immigrant Investor Program Office (IPO). This office is responsible for administering the EB-5 Program.

Historical data shows that the COVID-19 pandemic has an adverse impact on U.S. immigration, visa and travel programs overall, including the EB-5 Visa Program.

Due to the pandemic and global shutdown, the USCIS processing times increased by 40% year over year from FY2020 to FY2021.

Approval rates have however remained constant. While the pandemic caused approval times to increase, the actual approval rates remained much the same.

Comprehensive Due Diligence: The Essential Factor for EB-5 Investor Success

It is essential for regional center investors to perform due diligence on an EB-5 Project.

In addition to considering the success of a project, the investor will need to ensure that the EB-5 Project will enable them to fulfill the requirements of the EB-5 Visa Program.

Regional center investors must conduct due diligence on the regional center itself, as well as the EB-5 Project and its Project Developers.

To ensure thorough due diligence, EB-5 immigrant investors should take the following factors into account:

• Has the regional center had any successful visa petitions from past investors?
• How long has the regional center been in operation?
• Has the regional center’s EB-5 Project received approval from the USCIS?
• Can the investor’s chosen EB-5 project support at least 10 full-time jobs?
• Does the regional center have an investment fund redeployment plan?

At-Risk Investments

An EB-5 investment needs to be ‘at risk’ for at least two years. This means that any capital that has been assigned to the EB-5 Investment, must be irrevocably committed, without the expectation for a guaranteed return.

Targeted Employment Areas

TEAs are either rural areas or areas of high unemployment, as designated by U.S. census data and USCIS criteria.

EB-5 Regional Centers

An EB-5 Regional Center is an economic unit that has been specifically tasked with promoting economic growth in a specific area.

These regional centers are licensed by USCIS to pool multiple EB-5 investments into larger projects and manage EB-5 investments for multiple immigrant investors.

Most investors choose to invest in a new commercial enterprise through the EB-5 Regional Center Program.

Investing through a regional center allows immigrant investors to benefit from some distinct advantages over an independent or direct investment.

For example, if immigrant investors invest through EB-5 regional centers, they can count both direct job creation and indirect job creation towards their required 10 jobs.

If they invest in a new commercial enterprise independently however, investors can only count direct jobs.

The Importance of Careful Preparation

Immigrant investors who have performed due diligence from the outset are most often successful throughout the entire EB-5 process.

When application denials do occur, these are usually due to an avoidable error in their documentation, or any failure to follow the guidelines of the USCIS.

Some reasons for petition denial include:

Investing the incorrect amount

Investing less than the minimum investment amount that the USCIS requires ($1,050,000; or $800,000 if located in a targeted employment area) will result in a denial.

Investing in a project that is not eligible for the EB-5 program

Performing due diligence to check whether your regional center EB-5 investment will actually create or preserve 10 full-time jobs directly, or indirectly, is essential.

Purposely misrepresenting information presented in an EB-5 application

Any inaccuracies and inconsistencies in the information included in your petition or its supporting documents can be grounds for a denial.

It is important to note that proving an investor meets the lawful source of funds requirement can be extremely time-consuming and tricky, depending on the source of funds.

Children getting married or aging out of the program

When EB-5 Investors file their I-526 petitions, the USCIS essentially ‘freezes’ the dependent children’s ages until their I-526 or I-526E application is approved.

Depending on the investor’s country, getting a visa appointment at a U.S consulate and embassy can require a very long wait.

Waiting too long to start the EB-5 process, or to file Forms I-526 or I-526E, can result in children aging out of the program.

It is important to note that a child’s ineligibility won’t impact the rest of a family’s eligibility.

Previous criminal convictions or security-related concerns

Full background checks and full disclosure of court orders or convictions are required for EB-5 Investors and their families. If any of these documents are missing, this could be grounds for petition denial.

I-526 Best Practices

Ensuring that you have the required accompanying documentation for your application is key when compiling an I-526 petition.

New Commercial Enterprise

The new commercial enterprise must be eligible for the EB-5 Program. Evidence can include articles of incorporation, limited partnership agreements, state business certificates, joint venture agreements, etc.

Investment

The investor must prove they have already committed their investment capital. Evidence could include:

• Bank statements.
• Loan certificates.
• Security agreements
• Promissory notes.

Lawful Source of Funds

The investor must be able to prove that the funds for investment were lawfully obtained. Evidence includes:

• Bank statements.
• Tax returns.
• Securities statements.
• Pay stubs.

Investor Involvement
The investor must be involved in the management of the new commercial enterprise. Evidence of his or her involvement could include:

• Corporate documents.
• A description of the investor’s business duties.

Required Jobs

The investment must create or preserve 10 full-time jobs. Evidence that these jobs have been created and sustained can include:

• A business plan with a hiring timetable.
• An economic report that clearly demonstrates that the jobs will be created.

An immigration attorney will usually prepare Form I-526 or I-526E on behalf of immigrant investors.

I-829 Best Practices

This final step in the EB 5 process also requires accompanying documentation to prove total compliance with program regulations:

• Copies of the conditional Green Cards of each family member.
• Tax returns for a period of five years for the new commercial enterprise.
• Proof of Investment such as financial statements or bank statements.
• Proof of required employment creation.
• USCIS fees including filing fees, biometrics fees, etc.
• Evidence of the investment creating jobs could include: W-2 forms, invoices, I-9 info, financial statements, receipts and proof of expenditures or payment.

When preparing Form I-829, applicants should track metrics in the original economic model from the beginning. Applicants should also keep clear records of hard and soft costs, operational revenue numbers, jobs created, and cash flow.

Working with both an immigration attorney and a professional EB-5 consultant is highly recommended. This will help to ensure compliance with all the required forms and deadlines throughout the EB-5 visa application process.

Why Did My Petition Get Denied? And What Can I do?

Immigrant investors do need to be aware that while an EB-5 visa is often quicker to obtain than other Green Card alternatives, making an investment does not guarantee U.S. Permanent Resident Status.

The USCIS will occasionally deny an EB-5 Visa Petition.

While a petition may be denied due to any of the reasons we’ve discussed above, this does not mean an immigrant investor cannot get an EB-5 Visa and US. Permanent Residency.

The first step is to review the denial notice sent by the USCIS which will explain which aspects of the visa petition were not satisfactory.

An EB-5 investor has the right to file a legal motion to request that the USCIS reconsider its decision.

During this process, the investor may need to provide a comprehensive explanation and sufficient evidence to persuade the USCIS to reassess the visa petition.

It is important to know that in most cases, a denial from the USCIS does not prevent an immigrant investor from filing a completely new visa petition for a different EB-5 investment,

For example if the USCIS determined that a business that the investor subscribed to did not qualify as an EB-5 Project, the investor can subscribe to a different business and submit a new I-526 petition.

Can An EB-5 Investor Achieve Success?

Because the EB-5 Program could be more complicated than it appears, particularly when it comes to processes such as proving the sources of EB-5 investment funds and calculating job creation numbers, it is a good idea to approach an EB-5 Immigrant Attorney for assistance.

In addition to providing insight into the EB-5 Visa Application Process, your EB5AN Immigrant Attorney will be able to ensure that you complete the Visa Application correctly, first time.

Reach out to us today and arrange a consultation to help you and your family get on the path to U.S. Green Cards through the EB-5 program.