How might a past tourist visa denial affect an EB-5 petition?

Because the tourist visa is discretionary, the denial of one should not affect an EB-5 petition unless the past tourist visa was denied on grounds of inadmissibility. If the prior B visa was denied, for example, on the basis of failure to prove nonimmigrant intent, this should not affect the EB-5 investor’s application process for the EB-5 visa.

Nevertheless, all prospective EB-5 investors are highly encouraged to seek counsel from an immigration attorney before beginning the EB-5 process. An experienced immigration attorney can assist in answering any questions about admissibility, past B visa denials, and their impact on a future EB-5 petition.

Inadmissibility

According to the website of United States Citizenship and Immigration Services (USCIS), the various categories of inadmissibility include criminal activity or association, fraud and misrepresentation, previous removals, unlawful presence in the United States, national security, public charge, absence of labor certificate (if required), health and other miscellaneous charges.

The miscellaneous categories of inadmissibility include individuals who entered the U.S. illegally (without being inspected and admitted or paroled), individuals who did not attend immigration and/or removal hearings, student visa abusers, unlawful voters, international child abductors and their relatives, practicing polygamists, smugglers, and former U.S. citizens who renounced their citizenship to avoid taxation.

EB-5 Petitions

Provided the prior B visa was not denied on grounds of inadmissibility, the prospective EB-5 investor should be eligible to begin the EB-5 process.

The first step would be to conduct due diligence on all available EB-5 investment projects and assess their financial and immigration risk to determine the best project to invest in. Afterwards, the EB-5 investor will need to begin compiling the necessary information and documentation to file Form I-526. All these steps can be done with the aid of an immigration attorney.

If the prospective EB-5 investor is already residing in the United States under an E-2, F-1, H-1B, or L-1 nonimmigrant visa, they will be eligible for concurrent filing of Forms I-526 and I-485.