What Could Cause an EB-5 Petition to be Denied?

Here are a few common reasons why an EB-5 Petition could be denied.

Not Investing the Required Amount or Selecting a Project That Does Not Qualify

An EB-5 investor must invest $900,000 in a targeted employment area project or $1,800,000 in a non-targeted employment area. Failing to invest the required amount may result in petition denial.

Failing to invest in a qualifying EB-5 project can also result in petition denial. Between 2016 and 2018 there were over 800 USCIS approved regional centers, but that number has since dropped dramatically. As of September 2020, there are only 685 USCIS approved regional centers, so it’s extremely important that an EB-5 investor conduct thorough due diligence into any regional center prior to making an investment.

Misrepresentation of Material Facts or Fraud in Applications

Willfully misrepresenting material facts or fraud can permanently prevent an EB-5 investor from obtaining U.S. permanent residency and from entering the U.S.

Providing Inaccurate or Inconsistent Information or Omitting Information

It’s imperative that an EB-5 investor work closely with an experienced immigration attorney to provide all the required documentation and evidence required in the I-526 and I-829 petitions. Having this oversight can help ensure that the applications are filled out fully, accurately, and consistently. This is especially true when it comes to providing and submitting evidence showing that the EB-5 investor’s funds came from lawful sources and providing documentation proving that an EB-5 investor’s funds remained at risk for the required duration period of their conditional permanent residency.

Depending on the information provided, a Request for Further Evidence (RFE) may be issued, which could cause the EB-5 investor significant processing delays, or the investor may receive a petition denied.

Children and Aging Out or Marrying

Under the Child Status Protection Act (CSPA) as long as an EB-5 investor’s child was under the age of 21 when they filed their I-526 Petition, their child’s age may be able to be frozen until the petition is approved. The EB-5 investor then may have to quickly file their visa application to avoid their child aging out. If their child marries prior to I-526 Petition approval, their child may become ineligible as they are no longer the EB-5 investor’s derivative beneficiary. It’s important to consult with an EB-5 immigration attorney to determine the best course of action, as long EB-5 wait times and backlogs have many investors concerned about their child’s EB-5 future.

Ineligibility on Other Grounds

EB-5 investors may also be ineligible due to health-related grounds, criminal-related grounds, or security-related grounds. For a more complete list of visa ineligibilities, visit here. 

After Receiving a Denial

If an EB-5 investor has received a denial, they should read the denial thoroughly as it should explain the reasons for the denial. If an EB-5 investor has new information that they believe impacts their decision, consult with an immigration attorney to determine the best course of action. Whether they file an appeal or look at alternative immigration options, an immigration attorney can guide an application through the various options.

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