How might a past L-1 visa rejection affect an EB-5 application?

The rejection of a past L-1 temporary worker visa will not have any effect on an I-526 petition. Form I-526, Immigrant Petition by an Alien Investor, is processed based on the EB-5 investor’s compliance in terms of the minimum investment amount, minimum job creation, and source of funds. Unless the past L-1 visa was rejected due to inadmissibility, that rejection should have no impact on whether or not an investor’s EB-5 visa application can be approved.

Adjudication of Form I-526

The EB-5 visa program was created to boost the U.S. economy through job creation. Foreign investors must invest a specified minimum amount in a United States Citizenship and Immigration Services (USCIS) approved project. As of March 2022, with the passing of the EB-5 Reform and Integrity Act, the minimum investment amounts are $800,000 for projects in targeted employment areas and $1,050,000 for projects outside of TEAs.

Job Creation

In order for a project to meet USCIS requirements, it must create a minimum of 10 jobs. The kinds of jobs that can be counted towards this requirement depend on the type of EB-5 project. Direct investment projects require the jobs to be full-time, W-2 positions that are directly created by the EB-5 project. Regional centers, however, are able to count indirect and induced positions—those created as the result of a project’s overall economic impact—to meet the minimum requirement. There is a caveat with indirect and induced employment, however. As of March 2022, indirect and induced positions can make up only 90% of job creation. Of those, up to 75% of the jobs can be construction jobs lasting less than two years. These are changes brought about by the EB-5 Reform and Integrity Act.

Source of Funds

USCIS reviews I-526 petitions to ensure, among other things, that the EB-5 investment funds can be traced back to lawful sources and that any applicable taxes have been paid. Lawful sources include, but are not limited to, salary payments, real estate sales, gifts and inheritance.