Since it was established in 1990, the EB-5 Immigrant Investor Program remains one of the fastest and easiest ways for foreign nationals to immigrate into the United States. Unlike most other forms of employment-based immigration, the EB-5 program does not require the applicant to be sponsored by an employer. Instead, applicants can receive an EB-5 visa by investing in a qualifying EB-5 project.
EB-5 investors must invest the minimum requirement of $1.8 million in a qualifying EB-5 project. If the project is located in a targeted employment area (TEA), the minimum investment amount is reduced to $900,000. If the investment creates at least 10 new full-time jobs for U.S. workers, then the investor is eligible to receive an EB-5 visa. However, completing the EB-5 process can be challenging and complicated, and approval is not guaranteed.
Reasons for Denial
Many times, EB-5 investors face rejection for simple errors that could have been easily avoided. Other times, there may be a more serious issue with required documentation or fees. Below are some of the most common reasons applicants are denied:
- Submitting an I-526 or I-829 petition that contains errors or lacks necessary information
- Failing to provide required documentation, such as a copy of one’s birth certificate or passport
- Failing to pay the required fees
- Providing inaccurate or inconsistent information
- Failing to invest the required $1.8 million or $900,000 in an EB-5 project
- Investing in a project that doesn’t qualify for the EB-5 program
- Failing to document that one’s EB-5 capital was sourced legally
- Failing to show that one’s EB-5 capital is at risk for the duration of the investment
- Failing to provide a business plan that shows how one plans to meet the EB-5 job creation requirement
Potential EB-5 investors should work closely with an experienced EB-5 immigration attorney to ensure these requirements are satisfied, which reduces the potential for denial.
Options If Your EB-5 Application Is Rejected
If an EB-5 investor’s application is rejected, it does not necessarily mean that their dream of obtaining an EB-5 visa is over. While a rejection is not ideal, there are still options an investor can take to continue their pursuit of a future in the United States.
Upon the receipt of a denial notice from United States Citizenship and Immigration Services (USCIS), investors should examine the notice and identify why they were denied. Rejected applicants should discuss their options with an immigration attorney to decide which options are best for their specific situation.
Filing a Legal Motion
A legal motion is a request for the officer who adjudicated one’s petition to reevaluate it. If an applicant has new evidence that may persuade the adjudicator to approve the EB-5 petition, this may be the best option. A legal motion can also be filed if an applicant believes that an incorrect judgement was made by the adjudicator when denying their application. This claim must be supported with a thorough explanation. Any EB-5 investor planning to file a legal motion should work closely with an experienced immigration attorney to ensure the process is completed correctly.
Filing an Appeal
If a legal motion is unsuccessful, an applicant may be able to file an appeal against the denial of their petition. Appeals are typically handled by the Administrative Appeals Office.
Filing a New EB-5 Application
Some denials justify starting an entirely new application, but this is something that EB-5 investors should discuss with their immigration attorney to ensure the new application has a higher chance of success. No matter what the reason for denial is, it’s important for investors to consider all options before choosing their next action. While this process can be highly discouraging, a future in the United States is still possible.