Does the EB-5 program expect applicants to make their investments before visa approval?

Yes, to qualify for an EB-5 visa, a foreign national must have irrevocably committed their initial investment. Investment thresholds differ depending on whether the EB-5 project in a targeted employment area (TEA). A TEA in an area with high unemployment or a rural area—in other words, an area that will benefit significantly from foreign investment. As of 2022, the minimum investment amount is $1,050,000, but this is reduced to $800,000 for EB-5 investments in TEAs. Investors can also make direct EB-5 investments or invest in projects sponsored by regional centers.

Some EB5 investment projects place funds in an escrow account. The funds are then released to a project upon adjudication of the investor’s I-526 petition. This may not be the most favorable option, however, given the long wait times for I-526 petition adjudication. Escrow accounts typically hold the entirety of the capital needed for the EB-5 project to be successful, so it is imperative for developers to have access to the funds promptly.

Form I-526 is the first step in the EB-5 visa process for foreign nationals. They must complete the form, providing personal information about themselves and any immediate family members that they wish to include in the petition. The process is fairly straightforward, but the section that usually takes the longest is the source-of-funds documentation. Investors must prove that their funds are derived from lawful sources and that applicable taxes have been paid. This is the section most commonly responsible for I-526 petition denials due to the scrutiny of United States Citizenship and Immigration Services (USCIS).

An I-526 petition denial can be devastating to potential investors, but it does not necessarily mean the end of their immigration journey. The denial letter will list the reasons that the petition cannot be adjudicated, and foreign nationals can work with their immigration attorney to move forward. There may be options such as submitting an appeal, filing a motion, reapplying to the EB-5 program, or even exploring other options for immigration.