Everyone hopes for their visa or green card to be approved, but that isn’t always the case. Especially with the EB-5 green card, there are many factors that could lead to a rejection or a denial, which could easily cost you precious time and money. If you are interested in avoiding this scenario or already find yourself experiencing an EB-5 denial or rejection, this is for you.
EB-5 Green Card Background
For those that are considering applying for the EB-5 green card and want to avoid a rejection or denial, here is a brief overview of how this immigrant visa works and what is required to obtain it.
The EB-5 is an immigrant visa created for foreign investors that are willing to allocate a significant amount of money to a U.S. enterprise. The only requirement for the nature of the money is that it must be irrevocably invested and the money must be yours to control. For enterprises that are located in rural areas or areas with high unemployment rates, the minimum investment amount is $500,000. For all other enterprises, your must invest at least $1 million.
It is very important that you also demonstrate that your enterprise will create a certain number of jobs (usually about 10 depending on the size of the enterprise). Specifically, if you have a business plan that includes the hiring of U.S. citizens, this will go a long way toward your approval.
The benefits to the EB-5 are that no particular education level or occupation is required. You do not need a sponsor and you can self-petition, which means that you do not need a PERM Labor Certification. Additionally, the priority date waiting times for the EB-5 are generally much shorter than for other employment-based visas.
With these basic EB-5 requirements in mind, let’s take a look at some of the more frequent reasons that are cited for EB-5 denials and rejections.
Denial vs Rejection
You will likely hear the terms EB-5 denial and EB-5 rejection thrown around as you research and inquire about unfavorable decisions. While you may be tempted to think that these terms are interchangeable, this is not the case. Let’s highlight the differences between these two specific phrases.
The first thing to understand is that the USCIS processes petitions in two phases. In the first phase, the evaluating officer will perform a cursory inspection of your case to ensure the following things:
- The correct petition has been filed
- The required information on the petition is present
- The information is accurate and consistent
- You have the basic supporting documents to serve as evidence for your case
- Your fees are sufficient and properly filed
If you are missing any of these things or your petition fails any of these checks, you may be issued a rejection notice. In this case, your best bet is often just to correct the mistake and refile the petition with new fees. In some cases, the USCIS will issue a Request for Evidence (RFE) to give you the opportunity to submit the missing documentation before outright rejection. With an RFE, you will be given a period of time in which to respond. You must either submit a full response (all of the requested evidence), a partial response (some of the requested evidence), or withdraw your application before the given deadline. In most cases, even a partial response is preferable to withdrawing the petition.
Common Reasons for EB-5 Denial or Rejection
If you are interested in an EB-5 green card and want to avoid experiencing a rejection or a denial, here are some common reasons that petitions received unfavorable decisions. EB-5s are often rejected because:
- There is missing information on the petition
- The proper fees were not filed to the right places
- You are missing documents such as a copy of your passport or birth certificate
- The information you provided does not match or is not accurate
Your EB-5 might be denied if:
- You have not invested the minimum amount of funds
- You cannot demonstrate that the money was yours to control and that it has a lawful source. You need to be able to document this for at least the minimum amount ($500,000 or $1 million). Any funds invested in addition to the minimum amount usually do not require documentation.
- You do not provide a solid business plan that included the eventual hire of U.S. citizens
This last item is important to not just your I-526 approval, but also the removal of the conditions on your EB-5 after two years. The goal of the USCIS is always in the interest of U.S. citizens, which, when it comes to foreign entrepreneurship, involves the creation of jobs. You will need to show that U.S. citizens will end up being employed through your enterprise, and the best way to do that is through a robust business plan. The same is true for other entrepreneurial visas such as the E-2 and the L-1A.
What to Do After a Denial
This is all well and good if you are looking to avoid an EB-5 denial, but what if you have already received one? Is the decision reversible? Can you appeal? We’ll answer those questions here.
If you’ve received a denial on your EB-5 petition, the first thing you should do is read the denial notice. This will tell you why your petition is denied and what recourse you have at this point. For example, most H-1B denial notices say that you are not able to appeal the decision. Because this may or may not be the case for your EB-5 denial notice, be sure to read it thoroughly. You should then take it straight to your immigration attorney for proper advice on the next course of action.
You may have several options available to you including filing a legal motion, appealing, refiling, and even looking at other immigration options. Let’s take a look at each one.
EB-5 Legal Motions
If you would like to make a case to the evaluating officer that processed your petition, you may be able to choose one of two legal motions to have a chance of reversing the EB-5 denial.
Motion to Reopen – this motion is used when you and your attorney have new evidence that, if brought to light alongside your case, is substantial enough to potentially sway the evaluating officer’s decision. For example, if you come across proof that you had control over the invested funds at the time of the investment, you may be able to file a motion to reopen the case.
Motion to Reconsider – On the other hand, if you and your attorney believe that the evaluating officer was wrong in his or her decision in light of the provided evidence, then a motion to reconsider may be used. In this situation, you would need to prove that the officer was incorrect from a legal standpoint. This requires an in-depth knowledge of immigration law, which should always be handled by your attorney.
If legal motions are not an option or were unsuccessful, you might also be able to bring your EB-5 denial case before a third party through an appeal. This third party is almost always the Administrative Appeals Office, which has a track record of upholding the decisions of USCIS officers.
Depending on the nature of your denial or if you received a rejection, you may be able to refile with success. For example, if you invested $500,000 in an enterprise that you incorrectly thought was in an area of high unemployment, then you will need to invest another $500,000 to qualify. If you invest the necessary funds and refile the petition, you may be met with success. Speak with your EB-5 attorney to learn if this is a valid strategy for you.
Lastly, an likely the avenue of last resort, is finding another option. If, for some reason, an EB-5 is entirely out of your reach (for example, if someone invested their own money and attempted to name you the beneficiary), then you may want to consider other immigration vehicles. You may be able to recoup some of your investment and seek to obtain a green card through employment or through family. Your immigration attorney should be able to help you with other green card paths.
How Our Immigration Attorneys Can Help
Understanding the ins and outs of immigration law can be difficult, and navigating them on your own can lead to errors and mistakes that cost you precious time, effort, and money. With so much at stake, it is important to make sure that your investment is protected against EB-5 denial as much as possible. Hiring an expert is the best way to protect that investment.
Here at Immi-USA, we have a dedicated team of expert EB-5 attorneys with decades of experience helping investors like yourself navigate the pitfalls of immigration law. We help you file your petition, compile your evidence, and even represent you during RFEs, appeals, motions, and other complicated legal matters that might arise.
To get in touch with one of our attorneys, you can fill out this contact form and schedule a consultation with our office today.