EB-5 Petition Denials: Why They Occur & What You Can Do

A program designed to offer permanent U.S. residency to foreign investors and their immediate family members, the EB-5 Immigrant Investor Program has proven itself one of the best options for those wishing to relocate to the United States.

The program was established in 1990 to provide permanent resident status to qualifying investors and their families in exchange for investing in an approved EB-5 project.

This investment program has seen a surge in popularity since then primarily because, compared to other U.S. immigration programs, it provides a quicker and easier path to becoming a resident.

One contributing factor to its popularity is that there is no sponsor requirement. A number of other employment-based immigration opportunities require the petitioner to provide an employer wishing to sponsor them, which often proves difficult.

On the other hand, investors in the EB-5 program essentially become employers instead. We explain it this way because each petitioner must possess and contribute a monetary investment.

The minimum investment amount totals $900,000 or $1,800,000 depending on whether targeted employment area (TEA) the project is located in. Then, within that project, the investment must be used to create a minimum of ten new full-time jobs.

As a result, investors in the EB-5 program have a greater chance of securing quicker immigration than those in many other immigration options. This does not mean, however, that every EB-5 investor applicant is automatically approved. There are a number of reasons your EB-5 petition may be denied.

Common Reasons for EB-5 Petition Denial

As an EB-5 investor applicant, you can minimize your chances of denial by closely paying attention to and avoiding the below mistakes. Partnering with an immigration attorney can further help ensure your strict compliance with EB-5 program requirements.

  • Missing information on your I-526 or I-829 petition
  • Failing to provide additional required documentation, like a copy of your passport or birth certificate
  • Incurring delays in paying required fees
  • Providing information with inaccuracies and inconsistencies
  • Failing to ultimately invest the capital in your EB-5 project
  • Investing the capital in a non-qualifying project
  • Failing to include source-of-funds documentation on your lawfully obtained capital
  • Failing to prove your EB-5 capital will remain at risk for the investment duration
  • Failing to meet or provide business plans reflecting how you intend to meet the EB-5 job creation requirement

Steps EB-5 Investors Can Take When Faced with a Petition Denial

A petition denial does not have to signal the end of your journey through the EB-5 Immigrant Investor Program. Sure, experiencing rejection is always discouraging, but there are still actions you might be able to take to salvage your request for relocation to the U.S.

Always Read the Denial Notice Carefully

Your first step after receiving a denial notice from United States Citizenship and Immigration Services (USCIS) should always be to read it. And read it carefully. If you have any difficulty at all understanding the letter, get help.

In this notice, USCIS always explains the reason your petition was denied and provides you with resources to consult on the matter.

USCIS advises EB-5 investors to work closely with an immigration attorney to determine their best course of action under the circumstances unique to their case.

Once you understand why you have been denied and have had the chance to review the provided resources, you may take one or more appropriate courses of action, including…

  • filing a legal motion
  • submitting an appeal
  • re-applying to the EB-5 program
  • looking for alternative routes to immigration

Learn more about each of these common courses of follow-up action below.

When an EB-5 Investor May File a Legal Motion

When an investor can provide substantial new evidence that may persuade an adjudicator to revisit and approve the EB-5 petition, they may qualify to file a legal motion.

A legal motion is a document requesting the adjudicating officer to re-evaluate your petition.

An investor can also file a legal motion when they believe the officer has made an erroneous judgment in denying the petition. Note that this belief has to be presented with an in-depth explanation as to why you think the judgement was erroneous.

This is the kind of scenario in which an immigration attorney with vast knowledge and experience in EB-5 immigration law is most helpful.

When an EB-5 Investor May Choose to File an Appeal

For EB-5 investors who are ineligible to file a legal motion, or when filing a legal motion is unsuccessful, there may be an opportunity to file an appeal.

Appeals against EB-5 petition denials are usually submitted to the Administrative Appeals Office.

When an EB-5 Investor Should Consider Filing a New Application

In certain cases of denial of I-526 petitions specifically, many investors have found success through filing a completely new application.

For instance, if a petition comes back denied due to an investment in an ineligible project, submitting a brand new petition that applies the investment to a qualifying EB-5 project will likely garner better results.

Regardless of why your EB-5 petition has been denied or what options may be available to you now, understand that partnering with the right immigration attorney is vital. Without the experience and knowledge of a program as intricate as the EB-5 program, you may be unsuccessful if you attempt to rectify a denial alone.