In the case of a failed project, an EB-5 investor’s options largely depend on where they are in the EB-5 process. The EB-5 visa application might be salvageable if the investor is in the later stages of the process. The key is whether the investor can prove that they have met the requirements of the EB-5 program.
The basic requirements of the EB-5 program are that the EB-5 investment must remain at risk for the required investment period and that the investment must create 10 or more full-time jobs lasting two years or more for American workers. Therefore, if an investor has met these conditions at the time the project fails, the investor should qualify for an EB-5 visa.
If a project fails before the investor’s I-526E petition has been approved, the investor will have to refile the petition based on a different project. At this stage of the EB-5 process, the investor provides a concrete plan, through Form I-526E, that demonstrates how the EB-5 program requirements are being met. It is unlikely that the investor will meet the at-risk and job-creation requirements at this stage.
If a project fails after I-526E approval but before I-829 approval, the outcome becomes less certain. If the investor can demonstrate that they have met the requirements of the EB-5 program, the I-829 petition should succeed. If the investor has submitted their I-829 petition and it has not been processed, they have already demonstrated that they have met the requirements of the program. However, they may be issued a request for evidence and asked to provide additional information. After I-829 approval, the success or failure of a project will have no bearing on an EB-5 investor.
The wisest course of action when faced with the failure of a project is to consult an EB-5 immigration attorney immediately. Each EB5 investment application is unique, as is each project, so it is best to seek professional advice about individual applications when projects fail.
