Strategies for Avoiding RFEs and Denials for Form I-526

Form I-526, Immigrant Petition by Alien Investor, is the first hurdle that EB-5 investors must surmount in the process of obtaining U.S. permanent resident status. After the EB-5 capital has been injected into a qualifying U.S. business, investors must submit Form I-526. This visa petition must include detailed information about the business they invested in, the source of the EB-5 investment funds, and the terms of the investment. United States Citizenship and Immigration Services (USCIS) thoroughly reviews all the documentation submitted in Form I-526 to determine if an investor (and their dependent family) are eligible for a two-year Green Card.

Many EB-5 investors and immigration attorneys find that compiling all the necessary documentation can be challenging—USCIS expects Form I-526 submissions to meet high evidentiary standards. If the agency finds that an I-526 petition is incomplete or otherwise unsatisfactory, it may issue a request for evidence (RFE) or a notice of intent to deny (NOID). Even if these notices do not ultimately result in a denial, they can add significant delays to the already-lengthy EB-5 investment process.

EB-5 visa applicants can often avoid these unnecessary delays by paying close attention to a crucial aspect of every I-526 petition: the business plan. Business plans show USCIS whether an enterprise is financially viable and EB-5-compliant.

Financially Viability

In order for USCIS to approve an investor’s I-526 petition, the business plan must show how the enterprise will operate in its target market. It should include a marketing strategy, an overall budget, and a third-party market analysis; this last component is crucial because business plans with no third-party data to sustain their projections are unlikely to receive approval. The safest projects only use EB-5 investment funding as a comparatively small portion of the overall capital structure.

Consistency is also essential; USCIS adjudicators are likely to issue an RFE or even a denial if the information present throughout the business plan contains discrepancies. Before submitting Form I-526, the entire application should be reviewed for consistency across dates, financial projections, and other details.

EB-5 Compliance

Perhaps the most important aspect that USCIS looks for when evaluating a business plan is its compliance with EB-5 investment regulations. Of course, the right time for investors to carry out due diligence on potential EB-5 projects is before investing. For instance, investors should find out whether a potential EB-5 project complies with the at-risk requirement, which prohibits EB-5 applicants from receiving a contractual right to repayment. Moreover, the total EB-5 investment amount must be at least $800,000 if the project is in a targeted employment area (TEA). Non-TEA projects require a minimum investment of $1,050,000.

A project’s business plan should also feature detailed information regarding its plans for job creation, including a hiring timetable and descriptions of each job type. Since employment creation is one of the most essential components of the EB5 investment industry, this documentation will be crucial. At least 10 jobs per EB-5 investor must be created (or in the process of being created) by the time the investor submits Form I-829, Petition By Investor to Remove Conditions on Permanent Resident Status.

Moreover, some specifics of the business plan will vary depending on the investment type; if the business in question is sponsored by a regional center, then all of the EB-5 funding must be made available to a job-creating entity (JCE). The direct investment model, on the other hand, requires the EB-5 business and the JCE to be the same.

Evidently, ensuring compliance with USCIS requirements requires very careful planning and meticulous due diligence. Investors will need professional guidance to succeed in the EB-5 visa process, but the results will certainly be worthwhile.