What Happens If Your EB-5 Petition Gets Denied?

For foreign nationals who aim to obtain permanent residency in the United States, the EB-5 visa program, created in 1990 to stimulate the U.S. economy, is one of the quickest pathways. This program enables foreign nationals and their eligible dependent family members to obtain lawful permanent residency in the United States by investing in a commercial enterprise and creating 10 permanent full-time jobs for qualified U.S. workers.

While many international investors have enjoyed the benefits of the program, there are occasional roadblocks investors may face. One of the most major obstacles to overcome is an investor’s petition being denied by the United States Citizenship and Immigration Services (USCIS).

In this article, we will explain the common reasons for a USCIS denial and what to do in case your petition gets denied.

Common Reasons for Denial

Most denials occur for a handful of reasons, such as issues with the information on an investor’s documentation or concerns around an investor’s source of funds. We cover each of these common issues in detail below.

Investment Issues

The minimum required EB-5 investment amount is $1,050,000—or $800,000 if the investment is a targeted employment area (TEA) project. If an EB-5 investor fails to invest the minimum required amount or invests in a project that does not qualify for the EB-5 program, their I-526E petition will likely be denied.

Misrepresenting Information in an EB-5 Application

If a potential investor misrepresents any material facts or otherwise submits a fraudulent EB-5 application, their EB-5 petition will likely be denied. Misrepresentation and fraud might also lead to graver consequences, such as being permanently barred from obtaining a Green Card.

Failing to Provide Accurate or Consistent Information

Importantly, inaccurate or incomplete information isn’t the same as misrepresenting or fraudulent information. While the latter will likely lead to a denial and possibly further consequences, inaccurate or incomplete information will likely lead to either a notice of intent to deny or a request for evidence—with investors having a chance to correct or clarify the information on their application—though an outright denial can also occur.

Because the EB-5 process can be complex, it is of the utmost importance for investors to work with an experienced immigration attorney who specializes in EB-5 immigration in order to make sure the information included in their petition is accurate and complete. With the help of their counsel, investors should meticulously check their documentation prior to submitting their application.

Issues With Source of Funds

All EB-5 investors are expected to prove that their investment capital was legally obtained. This process, commonly referred to as source of funds, can be difficult and time consuming.

Again, working with an experienced immigration attorney—especially one with expertise working with the tax laws of your country of origin—can simplify this process and make it much more likely that your petition will be approved without issue.

Children Aging Out or Getting Married

One of the advantages of an EB-5 investment is that it provides the investor with the chance of securing Green Cards for their spouse and unmarried children under 21. Notably, though, once the children turn 21 or get married, they may not be able to benefit from the EB-5 investment of their parent.

While the Child Status Protection Act has put rules in place to protect children from aging out during the immigration process, these rules may not apply in all cases.

It is important to note that the ineligibility of a child will not cause USCIS to deny the investor’s EB-5 petition or any petitions for the investor’s other dependents—only the petition of the child in question will be denied.

Other Reasons

EB-5 investors may face denial for other reasons as well, such as health reasons, previous criminal convictions, or security-related concerns. Be sure to review all the personal requirements and qualifications of the EB-5 program to ensure you meet them.

What to Do if Your EB-5 Petition Is Denied

While it is very disappointing to have your EB-5 petition denied, a denial does not mean you cannot obtain your EB-5 visa or Green Card. Instead, you have various steps you can take to secure your visa and Green Card.

Review the Denial Notice

You will receive a formal notice from USCIS explaining why your petition may be denied. Review the reasons provided for the denial carefully and consult an experienced immigration attorney who specializes in EB-5 cases to get a clear understanding of what went wrong. Doing so will help you respond to the noted issues.

File a Legal Motion

If your petition was not denied due to inadmissibility, then you have the option to file a motion to reopen or to reconsider with USCIS. You can also file a motion to reopen the petition if you have new evidence or information that was not considered during the original petition. This is a good option if USCIS missed certain documents or you have gained additional proof.

If you believe that the decision was incorrect based on the law or facts as they were presented, you can file a motion to reconsider. This is typically done if you believe there was a legal error in the adjudication.

Once again, working with an experienced EB-5 attorney is crucial here, as they will know how best to proceed.

Appeal to the Administrative Appeals Office (AAO)

You may also file an appeal with the Administrative Appeals Office (AAO). Your immigration status will remain unchanged while the case is ongoing.

File a New Petition

If filing a motion or appeal yields unsuccessful results, you may also consider filing a new petition.

In filing a new petition, you may pursue any visa you are eligible for, and you may even apply for more than one immigrant visa at a time.

Make a New EB-5 Investment

If you do not wish to pursue any of the above avenues or receive unsatisfactory results after doing so, you may make a new EB-5 investment and file a new I-526E petition to start the EB-5 process again.

While this option is obviously lengthy and subject to the same challenges previously mentioned, it may be your best choice should you still wish to obtain an EB-5 Green Card.

Making the Right Decision

As outlined above, because each case is different, it is best to consult with experienced immigration lawyers to find the best option for you. It is also important to consider and understand the time and financial costs involved in each option—and the likelihood of success of the chosen action.

The EB-5 process has several stages, each of which has its own requirements. And choosing the right project that is the best fit for you is perhaps the most essential step in a successful EB-5 application. That is why you need help from a trusted EB-5 firm that will look out for your interests and help you navigate the process.

To learn more about how you and your family members can become lawful permanent residents of the United States, book a free call with EB5AN today.