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What Can You Do If Your EB-5 Petition Is Denied?

For the countless foreign investors around the world who wish to relocate to the United States, the EB-5 Immigrant Investor Program is one of the best options. Established in 1990, the program offers foreign investors permanent resident status in the United States for themselves and their immediate family members in exchange for an investment in a qualifying EB-5 project. The program has surged in popularity as a relatively quick and easy means to U.S. immigration.

One of the reasons the program is popular is that it does not require a sponsor. Many employment-based immigration programs require petitioners to find an employer to sponsor them, which is a difficult task, but for the EB-5 program, applicants simply need to possess the required $1.8 million or $900,000, depending on the targeted employment area (TEA) status of the EB-5 project. Avoiding the need to find a sponsor also renders the EB-5 program a quicker immigration program than most others.

Why Your EB-5 Petition Might Be Denied

While the EB-5 program is generally easier than other immigration programs, approval is not guaranteed. As an EB-5 investor, you can face rejection for a variety of reasons, including the following:

  • Failing to provide necessary information on the I-526 or I-829 petition
  • Failing to provide required documentation, such as a copy of your birth certificate or passport
  • Failing to pay the required fees
  • Providing inaccurate or inconsistent information
  • Failing to invest the required $1.8 million or $900,000 in an EB-5 project
  • Investing in a project that doesn’t qualify for the EB-5 program
  • Failing to document that your EB-5 capital was obtained lawfully
  • Failing to show that your EB-5 capital is at risk for the duration of the investment
  • Failing to meet or failing to provide a business plan that shows how you plan to meet the EB-5 job creation requirement

You can minimize your chances of rejection by paying close attention to the above criteria and working closely with your immigration attorney to ensure strict adherence to EB-5 requirements.

How to Handle an EB-5 Rejection

If you do receive a denial, your EB-5 journey is not necessarily over. While the experience is disheartening and discouraging, there may still be actions you can take to salvage your relocation to the United States.

If you receive a denial notice from United States Citizenship and Immigration Services (USCIS), read it carefully. USCIS explains why your petition was denied and provides resources you may consult going forward. Work closely with your immigration attorney and legal advisor to determine the best course of action for your circumstances. Appropriate courses of action may include filing a legal motion, submitting an appeal, reapplying to the EB-5 program, or looking for alternative routes to immigration.

Filing a Legal Motion

If you have substantial new evidence that could persuade an adjudicator to approve your EB-5 petition, you may be eligible to file a legal motion. A legal motion requests the officer who adjudicated your petition to reevaluate it. You may also file a legal motion if you believe the adjudicator made an erroneous judgment in denying your petition, but you must back up your belief with an in-depth explanation. In this case, you should work with an immigration attorney who has experience working with EB-5 investors and is deeply familiar with EB-5 immigration laws.

Filing an Appeal

If you are unable to file a legal motion, or if you do but it is unsuccessful, you may be able to file an appeal against the denial of your EB-5 petition. Appeals against EB-5 denials are generally presented to the Administrative Appeals Officer.

Filing a New EB-5 Application

If your I-526 petition was denied for certain reasons, you may have success with a new application. For example, if your petition is denied because you invested in an ineligible project, you can simply submit a new petition with an investment in a qualifying EB-5 project.

No matter why your petition was rejected or what your options are going forward, working with an immigration attorney is vital. The EB-5 program is incredibly complicated, and if you aren’t familiar with all the intricate rules, success in the face of denial is wholly unlikely.