If an EB-5 investor’s Form I-829 is denied, they can pursue administrative review through United States Citizenship and Immigration Services (USCIS), immigration court, or the federal court system. If the petition is not approvable, the investor will either need to find another EB-5 investment or some other means to maintain lawful status in the United States—or face deportation. An experienced EB-5 immigration attorney will be able to guide an investor through this process.
Should USCIS deny a Form I-829 petition, the investor can file a motion with USCIS to reopen the case or a motion to reconsider the application. Alternatively, they can request a review of the case during removal proceedings before an immigration judge if USCIS institutes removal proceedings. If the immigration judge confirms the denial of the I-829 petition, the petitioner can turn to the relevant federal circuit court of appeals or the district court to challenge the denial. However, appeals must be exhausted before bringing litigation against USCIS in federal court. The investor’s existing resident status does not change during these proceedings.
If an EB-5 visa application fails and the investor did not engage in behavior that makes them ineligible for a visa, the investor can still apply for any other nonimmigrant or immigrant visa, including an EB-5 visa. Sometimes the failure is caused by the EB5 investment failing. In such a case, the investor can apply for any immigrant visa they are eligible for—and even multiple visas at the same time.
If an investor feels that administrative review will not result in approval of the I-829 petition, they can make a new EB-5 investment and file a new I-526 petition to restart the EB-5 visa process. They will secure conditional permanent residency based on the approval of the second I-526.
If the investor committed fraud, misrepresented facts, committed a crime of moral turpitude, or did something else to make themselves ineligible for a U.S. visa, pursuing judicial review or even applying for a different immigrant visa probably would not work. The most sensible course of action is to consult an immigration attorney for guidance.