What to Do if Your EB-5 Visa Petition is Denied

The EB-5 investment program is known for its long processing times; United States Citizenship and Immigration Services (USCIS) can take years to process EB-5 visa petitions. Foreign nationals interested in the EB-5 visa also need to be aware that making an investment does not guarantee U.S. permanent resident status unless they are careful to comply with USCIS regulations.

During the EB-5 process, investors will have to submit two visa petitions to USCIS: Form I-526, to receive their conditional residency, and Form I-829, to obtain permanent resident status. Each petition is carefully examined by USCIS adjudicators.

To increase their chances of success, EB-5 investors are advised to hire an immigration attorney with EB-5 experience. Investors should also conduct their own research on the EB-5 industry to determine if they can comply with the applicable requirements.

Still, USCIS occasionally denies EB-5 visa petitions. In this article, we discuss the common causes for such denials and how investors can respond.

Common Pitfalls in EB-5 Visa Petitions

In many cases, USCIS denies petitions because of unclear evidence. Investors must take care to provide updated and accurate information on their petitions and ensure this information is consistent throughout the form. For example, details regarding the business plan, job creation schedule, and financial projections for the EB-5 project must all be consistent throughout the visa petition.

It is also critical for investors to provide adequate evidence and documentation to support their petitions. In Form I-526, investors need to prove to USCIS that the EB-5 investment funds were sourced lawfully. This involves tracing the capital back to its origin. Compiling this source-of-funds documentation is one of the most important and time-consuming steps in the EB-5 process.

What To Do If Your Petition is Denied

While USCIS denials are undoubtedly a setback, they do not necessarily mean that an investor cannot get an EB-5 visa and U.S. permanent residency. The first step is to review the denial notice sent by USCIS, which explains what aspects of the visa petition were unsatisfactory.

If the petition seems to be valid, an EB-5 investor can file a legal motion to request USCIS to reconsider its decision. They need to supply a comprehensive explanation and sufficient evidence to persuade USCIS to reassess the visa petition. If the motion is unsuccessful, the investor may appeal the denial instead.

It is also important for EB-5 investors to understand that, in most cases, a USCIS denial does not prevent them from filing a new visa petition related to a different EB-5 investment. For example, if USCIS deems that the business an 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.

The risk of a USCIS denial highlights the importance of immigration counsel in the EB-5 process. Despite these occasional challenges, the EB5 investment program is still one of the best ways to relocate to the United States.