If an EB-5 project fails, can an investor keep their priority date?

An EB-5 investor may be able to retain their priority date if a project fails after approval of the I-526 petition but before the investor has secured conditional permanent resident status based on the approved I-526 petition. If the project fails before I-526 approval or after the investor has secured conditional permanent resident status, the investor will have to file a new I-526 petition with a new priority date. Similarly, if the I-829 petition is denied because of the failure of the project, the investor cannot retain their priority date and will have to file a new EB-5 petition.

To retain their priority date, an EB-5 investor must also meet certain requirements. The rules regarding priority date retention apply to new I-526 petitions filed on or after November 21, 2019, when the EB-5 Immigrant Investor Program Modernization rule came into effect. In addition to the investor’s progress in the EB-5 process, whether approval of the initial petition involved fraud or misrepresentation on the part of the petitioner or a gross error on the part of USCIS determine priority date retention.

The investor cannot retain their priority date if (i) the investor committed fraud or misrepresented facts and this led to the approval of the initial I-526 petition or (ii) USCIS finds that it made a material error when approving the I-526 petition. However, if the regional center, new commercial enterprise, or project commits fraud or misappropriates funds, the investor can retain their priority date. Likewise, if USCIS revokes I-526 approval because of a material change, the investor can still keep their priority date.

Additionally, priority dates are not transferrable. In other words, an investor can retain their priority date only if they file a new EB-5 petition and not if they subsequently file, for example, an EB-1 petition. An investor also cannot transfer a priority date to a family member.

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