What Are the Chances of I-526 and I-829 Petition Approval?

Investments made through the EB-5 Immigrant Investor Program can sometimes be appealing financial endeavors. However, for most EB-5 investors, the highest priority of all is obtaining U.S. green cards, or permanent residency, for themselves and their eligible family members.

Because of this, most EB-5 investors prefer to understand their chances of EB-5 approval before making an EB-5 investment in the first place. To be sure, denial is always a possibility. There are simply no guarantees. However, the average approval rate for I-526 and I-829 petitions indicates that, for most investors, the EB 5 visa process is certainly worth it.

What Is An EB-5 Investment?

The EB-5 Immigrant Investor Program is one of the fastest ways for foreign investors, their spouses, and unmarried children under 21 years of age to receive U.S. permanent residency. The program is administered by United States Citizenship and Immigration Services (USCIS), and is designed to generate investment in underserved areas of the United States.

EB-5 investors must make a required minimum investment of $1,050,000 in a new commercial enterprise (NCE). Their investment must create at least 10 full-time jobs (minimum 35 hours per week) for U.S. workers that last at least two years.

The minimum EB-5 investment is lowered to $800,000 if the chosen EB 5 project is located in a targeted employment area (TEA), an area designated by USCIS as either a rural area or an area of high unemployment. EB-5 Affiliate Network keeps an up-to-date TEA map to help EB 5 investors find if their chosen project for EB-5 investment is eligible for a lowered minimum investment.

The investment capital must be lawfully sourced, and must remain “at-risk” for the entire duration of the investment, meaning that it is an actual investment instead of a guaranteed return. The investor must also be an active participant in the daily management of the new commercial enterprise, such as a board member or a limited partner.

The EB 5 capital can either be invested directly in the NCE, or it can be invested indirectly through an EB-5 regional center.

Regional centers are EB-5 investment agencies approved by USCIS to assist with the EB-5 investment process and pool investors’ capital. Nearly all EB 5 investors invest through the regional center program, as it allows for much greater flexibility in meeting the EB-5 program’s employment creation requirement.

The EB-5 Investment Process

Step 1: Investment and Documentation

• Find an eligible EB-5 project looking for an influx of capital through the EB-5 program, and invest the required minimum through a regional center.

Step 2: File Form I-526 or I-526E

• Form I-526, Immigrant Petition by a Standalone Investor, is the form submitted to USCIS by “direct investors”.
• Form I-526E, Immigrant Petition by a Regional Center Investor, is the form submitted by “regional center Investors”.
• Both of these forms require extensive supporting documentation to prove the validity of the new commercial enterprise, the regional center, the investor, the investment, the source of funds, and more. Preparing either one of these petitions requires great detail and preparation.
• An immigration attorney submits Form I-526 or I-526E to USCIS on behalf of the immigrant investor and their family members.

Step 3: Conditional Permanent Residency

• Once an investor and their eligible family members have received USCIS approval on their I-526 or I-526E petitions, they will be granted conditional permanent residency in the United States. This means they will each be granted temporary legal residence lasting two years.
• Investors residing outside the U.S. must complete an in-person interview at their local U.S. Consulate or Embassy, in order to immigrate.
• Investors already residing in the U.S. can file Form I-485 for adjustment of status at the same time as they file their I-526 or I-526E petition.

Step 4: File Form I-829 for Removal of Conditions

• In the final 90 days of an EB 5 investor’s two-year conditional permanent residence, the investor must file form I 829 to remove conditions from their green card before it expires. This is usually filed by an immigration attorney.
• Upon approval by USCIS, the investor and their eligible family members will each receive green cards granting full permanent residency in the United States without conditions.
• If the new commercial enterprise has turned a profit by the time the loan term expires, the investor’s EB 5 capital investment will be repaid.

Do You Need An EB-5 Immigration Attorney?

An immigration attorney is essential to the EB-5 process. Nearly all EB 5 investors hire an immigration attorney to help them file Form I-526 or I-526E as well as Form I-829. Many also retain an immigration attorney’s services to advise throughout the entire EB-5 visa process. Attorneys also work to protect applicants privacy.

Forms I-526/I-526E and I-829 require extensive supporting documentation to prove compliance with all tenets of the EB-5 Immigrant Investor Program. Every EB-5 project and every EB-5 investor is different, so gathering the specific documentation needed to support the claim of each specific case can be a difficult task. Immigration attorneys will advise on the exact documentation investors need, and help compile it.

Immigration attorneys also nearly always file I-526/I-526E and I-829 petitions with USCIS on behalf of immigrant investors.

Retaining the services of an immigration attorney will help ensure that, at each stage of the EB-5 process, an investor’s specific case meets all criteria for proof of compliance with USCIS regulations.

What Is the Value of Working with an EB-5 Regional Center?

Making an EB-5 investment through an EB-5 regional center allows investors to include indirect and induced jobs toward their employment creation requirement.

Indirect jobs refer to any job created because of the deployment of EB 5 capital; for instance, construction vendors, legal counsel, or others whose jobs depend indirectly on the NCE.

Counting indirect jobs helps cushion an investor against unforeseen circumstances that might make some jobs last less than two years. Direct EB-5 investments can only count direct employment creation, meaning employees hired on a W-2 tax form, a severe limitation compared to a regional center investment.

A streamlined process is also another driving force behind the overwhelming preference to make an EB5 investment through an EB-5 regional center.

Reputable regional centers can also offer their EB-5 investors professional guidance, which has been proven to increase investors’ chances for I-526 success.

Another advantage of regional center investment is relaxed investor involvement requirements. Merely signing on as a limited partner is sufficient to meet EB-5 program requirements when affiliated with a regional center.

Reputable regional centers always provide whatever documentation and information are requested by immigrant investors, such as:

• How many projects the regional center has sponsored.
• How many previous investors have gotten I-526E or I-829 petition approval through the regional center.
• Their historic rate of return on EB-5 capital by the end of previous loan terms.

The EB5AN Regional Center Network has more than 10 well-established USCIS-approved regional centers with operations in more than 20 U.S. states and territories including New York, California, Texas, Puerto Rico, and Washington, D.C.

Your I-526 Submission: Taking A Deeper Dive

The very first form every prospective EB-5 investment participant is required to file with USCIS is Form I-526 or I-526E. This submission officially sets off the EB-5 investment journey.

Filing this petition means an investor has already identified their EB-5 project and has committed their capital to a designated escrow account. As one would imagine, by the time a prospective investor has made this submission, a lot of groundwork has already been laid. This fact—and the plethora of stipulations and required supplemental documentation—can make the I-526 an intimidating petition.

USCIS asks in-depth questions about an investor, their immediate family members, and the proposed project they are investing in. Additionally, petitioners are required to satisfy three key requirements to continue forward in their EB-5 journey:

• They must demonstrate they have committed their EB-5 funds to the NCE and will participate in the NCE’s management
• They must prove that the new commercial enterprise (NCE) receiving their EB-5 investment truly exists and features a viable job creation plan
• They must provide evidence that all EB-5 capital has been sourced lawfully

Supporting documentation can and should include, but is not limited to:

• Photocopies of passports, seven years of tax returns, foreign business registrations, evidence of all civil and criminal judgments and cases, as well as evidence of an investor’s net worth and employment history.
• Any fees or costs transferred between the investor and their regional center or NCE, and proof of compliance with U.S. work and immigration laws.
• The NCE’s business plan, including employee hiring, payroll records, tax records, investment agreements, Form I-9s, and other documents for employees.
• Copies of the NCE’s founding documents, such as a partnership agreement, articles of incorporation, or joint venture agreement.
• Bank statements showing the investor’s deposits in the NCE’s U.S. bank accounts, or other evidence of the petitioner personally investing.
• A copy of the receipt notice from the regional center’s I-956F petition filing.

Historically, meeting the source-of-funds requirement has been the most difficult and time-consuming endeavor due to the various fund sources an investor must prove. Savvy investors tend to hire an experienced EB-5 immigration attorney to streamline this process. These industry experts can advise EB-5 clients on the best fund sources to use and offer insight into any other challenging areas of the I-526 submission process.

Getting I-526 or I-526E approval provides eligibility for two years of conditional U.S. permanent residency status for the investor and their qualified relatives.

I-829 Petition Approval

Whereas the I-526 is a harrowing introduction to an investor’s EB-5 journey, the I-829 petition is often a far more exciting endeavor, signaling the EB5 investment journey’s final step before a permanent Green Card.

This petition outlines for USCIS if and how an EB5 investment has met all program requirements that would allow the investor and their eligible family members to obtain their U.S. green cards.

In the final three months of the two-year conditional permanent residency period, investors are required to submit Form I-829, which requests the removal of those conditions to obtain the right to live in the United States indefinitely.

The Hard Numbers on I-526 and I-829 Approvals

The I-526 and I-829 petition processes can be extensive and cumbersome. Prospective investors often dedicate a lot of deliberation to whether I 526 and I 829 approval rates justify the effort necessary to successfully complete an EB5 investment. The verdict for most is an overwhelming yes.

For more than a decade, USCIS has maintained an average I-526 approval rate of nearly 83%.

Even better, more than 90% of regional center investors’ I-526 petitions are approved, highlighting the advantage of partnership with the right EB-5 regional center.

For those who make it to I-829 petition submission, there’s more good news. Any foreign national who has successfully hurdled the first stage of USCIS adjudication (in other words, has had their I-526 petition approved) is highly unlikely to lose their permanent resident status when filing their I-829 petition.

Data shows that since the 2016 fiscal year, the I 829 approval rate has been 96% USCIS approval of all I-829 petitions. In the last eight years, the lowest I 829 approval rate on the books is 90%.

So, while it is impossible to guarantee approval, those are good odds.

Despite risks of delays, setbacks, and even denial, foreign nationals can continue to embark on an EB-5 investment journey with little fear of ultimate denial. Form I 526 and Form I 829 approval rates have historically been very high, and working with an immigration attorney and an EB-5 regional center can increase those odds through due diligence.

Furthermore, working earnestly toward fulfilling program requirements and consulting experienced EB-5 immigration attorneys throughout the process will only increase their chances of enjoying the countless benefits of permanent residency status in the U.S.

Call EB5AN by telephone or WhatsApp at 1-800-288-9138, email us at info@eb5an.com, or schedule a free consultation to begin your EB-5 investment journey today.