What Happens If a Family Member’s EB-5 Application Is Denied?

The EB-5 Immigrant Investor Program offers foreign nationals and their families a pathway to U.S. permanent residency (a Green Card) by making a qualifying investment in a new commercial enterprise.

However, like any immigration process, there is always the possibility that an EB-5 application may be denied. If a family member’s EB-5 application is denied, it can cause concern for the entire family, especially if other members were included in the application.

While U.S. Citizenship and Immigration Services (USCIS) does not offer specific guidance on this issue, in this article we will discuss what is likely to happen in such cases based on the available information.

What Happens After an EB-5 Denial?

If a family member’s EB-5 application is denied, it is essential to understand the impact on other family members.

In most cases, the principal applicant’s spouse and unmarried children under 21 years old are included in the principal EB-5 petition. Therefore, a denial of the principal applicant’s petition will usually result in the denial of their dependents’ applications as well.

Notably, though, this does not automatically mean that the entire family is excluded from the EB-5 program.

Can Other Family Members Submit Their Own EB-5 Applications?

Yes, family members can submit their own individual EB-5 applications after the petition of a principal applicant has been denied.

There are, however, several important factors to consider:

New Application

As mentioned above, if one family member’s application is denied, it does not prevent others from applying.

Each person’s eligibility is assessed individually, so a denial does not affect the possibility of new EB-5 applications being approved for other family members. This means that even if the primary applicant is denied, other family members, such as a spouse or children, can still apply for EB-5 if they meet the investment requirements and have the necessary documentation.

Investment Source and Amount

The new application will need to meet the same requirements as the original application.

The most important aspect of these requirements is being able to invest the required minimum amount, which is typically $1,050,000, or $800,000 if the investment is made in a targeted employment area (TEA).

Independent Eligibility

Each applicant will have to establish that they can independently meet the program’s requirements, particularly the rules around source of funds.

If the initial application was denied due to issues related to the source of funds or the investor’s financial history, the same issues could arise in future applications if not properly addressed. This is especially true if the funds for the new investment have come from the same source as the denied investment.

Potential Challenges in Submitting a New EB-5 Application

While submitting a new application is possible, there are several potential challenges you should be aware of.

Addressing the Reasons for Denial

If a family member’s EB-5 application is denied, it is crucial to read the denial notice carefully and understand the specific reasons behind the denial.

Common reasons for EB-5 denial include issues with the source of funds, problems with the investment structure, or failing to demonstrate that the investment will create the required 10 full-time jobs for U.S. workers.

If the reasons for the denial are not fully addressed, the new application may face the same issues.

Legal and Financial Complications

The denial may highlight legal or financial issues that must be resolved before a new application can be successfully submitted.

For example, if the original application was denied due to insufficient documentation of the source of funds, the new applicant will need to gather more comprehensive evidence, which can be time consuming and costly, or may need to use a different source of funds altogether.

Investment Risks

In some cases, the project that was initially chosen for the EB-5 investment may no longer be a viable option. This could happen if the project is no longer operational or if the business’s plan did not meet the job creation or financial requirements.

Choosing a new, reliable investment opportunity may be necessary, but this introduces the risk of financial loss or delay.

Immigration History

Any denial in the family’s immigration history may raise concerns with U.S. immigration authorities in the future.

Specifically, if they learn of a related past denial, immigration officers may scrutinize the reasons for the previous denial, especially if they find patterns of non-compliance, fraud, or issues that have not been corrected. As a result, they may be more likely to find such issues in the new application.

Strategies for Strengthening a New EB-5 Application

If a family member’s EB-5 application has been denied, there are several steps that can be taken to improve the chances of success for a new application.

Consulting With an Experienced Immigration Attorney

This is the first and most important step to take after your petition gets denied. It is essential to work with an immigration attorney who specializes in the EB-5 program. They can help review the reasons for the previous denial and guide the applicant on how to address those issues.

A knowledgeable attorney will also assist in ensuring that all documents are properly prepared and submitted, minimizing the risk that any new issues will arise.

Addressing Any Issues With the Prior Denial

If the denial was due to issues like insufficient job creation, incomplete documentation, or problems with the business plan, it is vital to thoroughly address these problems in the new application.

Once again, an EB-5 immigration attorney can help with this process, as can partnering with an experienced, trustworthy regional center.

Providing Clear and Comprehensive Evidence

One of the most common reasons for EB-5 denials is inadequate documentation. All applicants must provide clear, credible, and complete evidence of personal documents (such as identification), documents related to the project (such as documentation proving the project will create the required jobs), and, of course, the source of funds documents (such as bank statements, tax returns, and other financial records).

Since inadequate or improper source of funds documentation is one of the most common reasons for denial, it is especially important to be thorough in this part of your application. Once again, an experienced immigration attorney as well as a financial advisor can help you with this step of the EB-5 process.

Choosing a Reliable EB-5 Project

The choice of EB-5 project is critical. It must be a legitimate, EB-5–compliant project that is capable of meeting the job creation requirements.

Investing in a regional center project located in a TEA may also offer advantages, as these projects are often structured to meet USCIS requirements, and some may have pre-approved exemplar petitions that can streamline the adjudication process.

EB5AN Can Prevent a Potential Denial

A denial of a family member’s EB-5 application can be discouraging, but it does not necessarily mean the end of the road. Other family members can still submit their own EB-5 applications, provided they meet the program’s requirements.

It is crucial, however, to carefully review the reasons for the denial and address any underlying issues in a new application. Having the right EB-5 team by your side can make all the difference in overcoming previous challenges and achieving a successful outcome.

EB5AN has helped more than 2,300 families from 70+ countries relocate to the United States as lawful permanent residents. If you need help preparing a strong EB-5 application, book a free call with our expert team today.