When a job-creating entity (JCE) goes bankrupt, the implications for EB-5 investors depend on their progress in the EB-5 process. An EB-5 visa application is more likely to succeed in the later than in the earlier stages. Success depends on whether the investor can demonstrate that they have fulfilled the EB-5 visa requirements.
Two key requirements of the EB-5 program are that the EB-5 investment must lead to 10 full-time jobs, lasting at least two years, for U.S. workers and that the investment must remain at risk for the investment period. Consequently, if an investor can prove that they’ve met these requirements when the JCE goes bankrupt, they should still be able to successfully submit their I-829 petition.
However, if the JCE goes bankrupt before Form I-526E approval, the investor should abandon that petition and refile based on a new project. Form I-526E outlines how the petitioner currently meets EB-5 program requirements and intends to continue to do so. At this stage, the petitioner is unlikely to meet the job-creation and at-risk requirements.
If the JCE goes bankrupt between I-526E and I-829 approval, the outcome is uncertain. It boils down to whether the petitioner can prove on the I-829 petition that they have fulfilled the EB-5 program requirements. Consequently, if they have submitted their I-829 petition but it is awaiting processing, their application should be successful because they can demonstrate that they qualify for an EB-5 visa. Nevertheless, USCIS may issue a request for evidence to ask for additional information. Once the I-829 petition is approved, the status of the JCE has no effect on an EB-5 investor’s immigration journey.
When a JCE goes bankrupt, the first thing an investor should do is contact an immigration attorney. Because every EB5 investment is unique, professional advice will provide the clearest indication of the way forward.
