Why Form I-956F Approval is Critical for EB-5 Investors

If you are considering an EB-5 investment, you want to do everything you can to help make sure your Form I-526E immigrant petition is approved.

U.S. Citizenship and Immigration Services (USCIS) makes decisions about I-526E petitions based, in part, on investors’ personal details—their sources of funds, their admissibility to the United States, and more. But crucially, USCIS also looks at project details when adjudicating Form I-526E.

Each development project that accepts EB-5 investments must file a Form I-956F. If USCIS approves this application, the project’s details—such as its business plan, offering terms, job-creation method, and more—have been approved.

After the Form I-956F has been approved, each investor’s I-526E petition will be approved or denied based solely on his or her personal details, as USCIS has already deemed the project to be EB-5 compliant.

But if USCIS denies the Form I-956F, an EB-5 investor’s personal details do not matter—his or her Form I-526E will almost certainly be denied.

In this article, we will provide you with an honest look at what happens if the EB-5 project you choose has its Form I-956F denied by USCIS and how you can respond should this occur.

Specifically, we consider the timing of project denials, the appeals process, and how these issues can impact EB-5 investors. Then we discuss how project denials can impact EB-5 investor funds. Next, we look at how project denials disrupt the EB-5 immigration process. Finally, we consider the obvious alternative to these risks: choosing a project that has already been approved by USCIS.

Form I-956F Petition Process: Potential Extended Uncertainty

When an EB-5 investor chooses a project with a pending Form I-956F, a key risk is that this petition could be denied by USCIS. While Form I-956F approval does not inherently make a project low risk, it does reduce project-level risk in particular. Put simply, investing in a project before it has approval always carries at least some risk of an investor’s initial petition being denied.

One problem for EB-5 investors is that the Form I-956F application process can take a long time, and they may not learn of any issues until late in the process—and the process takes a long time. Specific data for the process is limited, but a typical Form I-956F approval may take anywhere from six to 12 months, and any issues along the way can extend this timeline.

Months after the petition is filed, if any issues or discrepancies are in the petition, USCIS may send a request for evidence (RFE) to the regional center, who are then typically given about three months to reply. USCIS will then review the RFE response. If all issues raised in the original RFE are adequately addressed, the I-956F petition could now be approved. But if any other problems arise or if the original issues aren’t addressed, USCIS may issue a subsequent RFE or a notice of intent to deny (NOID). The response period for NOIDs is typically about one month.

As a result, a Form I-956F denial could be issued six to nine months—or more—after the initial filing date. If the project were to appeal the decision, that would extend this process, likely by six months or more, with no guarantee of success.

Notably, many regional centers will not inform EB-5 investors when USCIS issues RFEs or NOIDs regarding project documentation. As a result, investors may not learn of a problem with the project’s Form I-956F until they receive NOIDs or outright denials with respect to their own I-526E petitions.

The length of the Form I-956F denial process results in a major loss of time for the project’s EB-5 investors.

While no investor wants to waste time with a failed project, for some investors, the timing of their petition is of particular importance: Investors with older children may lose the ability to claim their children as derivative beneficiaries. Also, those in the United States who adjust their status to conditional permanent resident via Form I-485 may face deportation if their petitions are denied.

The Regional Center’s Response

This process is more complicated whenever a regional center is less than fully transparent. All regional centers should be forthcoming regarding all project-related information, including any Form-956F RFEs, NOIDs, or denials as well as their response to any of these.

Even if a project’s Form I-956F denial is ultimately overturned on appeal, during the appeal process, the project should not be taking on new EB-5 investors—that would be the ethical choice. If, however, the offering were to remain open to subscriptions, it should disclose that the project’s Form I-956F has been denied by USCIS and that the denial is being appealed. But if the project discloses that its Form I-956F has been denied, it is highly unlikely to find any new EB-5 investors.

So, practically speaking, a project that is appealing a Form I-956F denial will have to pause EB-5 fundraising.

How might such a pause in EB-5 investment impact the project’s existing EB-5 investors? If the project was not fully subscribed before the denial and the project relies on EB-5 funds, then development may stall due to insufficient funding. Such a delay could hurt the financial success of the project and could reduce or delay job creation for EB-5 investors.

EB-5 Investor Funds May Remain Committed Long Term

EB-5 investors in denied projects may be required to keep their principal investment in the project for the original investment term. This means that if the EB-5 funds were used to make a five-year loan with two optional extensions of one year each, EB-5 investors may have to wait seven years before getting their money back.

Some projects offer refund guaranties in the event an EB-5 investor’s I-526E petition is denied by USCIS. Even with some kind of refund guaranty, however, EB-5 funds may not be returned quickly—or at all.

Any guaranty from a project’s developer to refund EB-5 investors if their petitions are denied depends on the liquidity of the developer’s assets. In other words, to be able to issue refunds, the developer has to have cash available.

If a single EB-5 investor is denied, a refund is not as challenging. But if the project itself is denied, all of the EB-5 investors will be denied, too. In that case, the question is not whether the developer will have enough cash on hand to repay you but whether it will have enough cash to repay all of the EB-5 investors at the same time.

This is where the project’s overarching financial comes into play.

If a development project depends on EB-5 financing, it is likely to use EB-5 investor funds prior to any denial. If the denial happens before all expected EB-5 funds are invested, the project may not be able to be completed. And a failure to complete the project would likely result in a partial or total loss of capital for EB-5 investors, in addition to failing to receiver their Green Cards.

Form I-956F Denial Means Restarting the EB-5 Immigration Process

If the project’s Form I-956F is denied and any appeal fails, each of the project’s EB-5 investors’ I-526E petitions will likewise be denied. Each EB-5 investor would thus be forced to either abandon their dream of EB-5 immigration or restart the process.

While restarting the process would be burdensome and time-consuming in the best of times, the EB-5 program’s looming deadlines complicate matters further.

The EB-5 regional center program is currently authorized through September 2027. Under the current authorization, the government is required to process immigrant petitions only if they are filed on or before September 30, 2026. If the EB-5 program is not reauthorized, petitions filed after that date may never be processed.

If an EB-5 investor were to invest today in a project with a pending Form I-956F, the project may not be approved or denied until long after September 30, 2026. If that project were denied, it could be too late for its investors to restart the EB-5 process.

Even if an EB-5 investor had time to restart the process, there is no guarantee they would have time to do so successfully. Restarting would firstly mean vetting new projects—and after a bad experience, the vetting process is likely to be more rigorous to avoid another denial.

After finding a project the investor feels comfortable with, he or she would then have to invest the minimum amount again—currently set to $800,000 for projects in targeted employment area (TEA) projects and $1,050,000 for non-TEA projects. And these amounts are set to increase on January 1, 2027.

Crucially, if the denied project has not yet returned the investor’s money, he or she would have to have access to additional funds. In addition to the investment amount, the investor will have to pay any administrative and other fees related to subscribing to the new EB-5 offering. These additional requirements could be financially untenable for many investors.

The EB-5 investor will also need to file a new Form I-526E. Preparing the form takes time and will result in additional legal costs. And filing the new form with USCIS means paying the filing fee—again.

Filing the new Form I-526E also means getting a new priority date. Earlier priority dates mean earlier adjudication. Losing the priority date from the first filing and being assigned a new (later) priority date therefore results in increased risk.

If Form I-526E receipt volume increases, a later date could mean delays. And if the investor’s country of origin faces a visa backlog in the future, a later date might mean the investor will have to wait even longer for an EB-5 visa.

Simple Alternative to These Risks: Invest in Approved Projects

The simplest way to avoid these risks is to select a project that has already received Form I-956F approval from USCIS.

Maybe you have already found a project you like, but it does not have Form I-956F approval yet. If, after weighing the risks presented above, you still want to invest in this project, at least consider some simple ways to help reduce these risks:

• Ask the regional center to guarantee, in writing, that it will promptly provide you with updates on any RFEs, NOIDs, or similar correspondence it receives with respect to the project.
• Review the Form I-526E refund guaranty. Ensure that the return of EB-5 investment funds is backed by an entity with enough liquidity to perform the guaranty and that the guaranty applies if the project’s Form I-956F is denied.
• Ensure that project completion is not reliant on EB-5 financing.

At EB5AN, all of our projects have already received Form I-956F approval. And our Form I-956F track record is excellent: We have never had a project denied by USCIS, all while leading the industry in project approvals.

If you have questions about the I-956F approval process or would like to speak to us about investing in one of our USCIS-approved projects, please schedule a call today.