The EB5 immigration visa is popular among foreign nationals looking to relocate to the United States. But, stringent regulations and recent changes in the EB 5 program have increased the plight of many investors leading to I-526 denials.
The I-526 petition (filed by the immigration attorneys) demonstrates that the investor has filed, and is in the process or has already invested the required amount of lawful capital in an acceptable EB-5 project.
While most denials are due to insufficient evidence documenting the source of funds, a large number of denials can be attributed to the retroactive application of amended USCIS policies.
The most recent change in the EB 5 visa rules is a pertinent example of the latter.
What To Do In Case Of an I-526 Denial
According to the Federal Register, if USCIS denies your petition (after a period of 5 to 10 months) you will get a written notice of the decision along with the reasons thereof.
USCIS will issue a notice to request more evidence or notify other reasons for the denial.
“A large number of denials can be attributed to the retroactive application of amended USCIS policies.”
In cases of denial, investors have the following options
1) Appeal the decision
2) File a complaint in the federal court, and/or
3) Start over with a new I-526 application and pursue other immigration paths.
Let’s take a closer look at these options to evaluate the best course of action.
Appeal the Decision
An EB 5 investor can appeal the denial by moving a motion to reopen and reconsider the petition with the Administrative Appeals Office (AAO).
A motion to reconsider and reopen a petition requires the investor to furnish such evidence that was previously unavailable.
Since USCIS usually issues a Request for Evidence (RFE) or a Notice of Intent to Deny (NOID) before I-526 denials, an investor has ample opportunity to present persuasive evidence. Thus, this option seldom results in successful I-526 petitions.
However, if an EB 5 investor feels USCIS made an erroneous decision on a specific issue, he/she can file a motion on such legal argument. Generally, the AAO processes applications within nine months.
A majority of the EB 5 visa investors that receive I-526 denials due to changes in the immigration policy opt for this alternative. Although the cost of pursuing relief through litigation in a federal court is more than the option above, it has a much higher success rate.
You can consider filing a complaint with the federal court in case USCIS
- erred in applying EB5 rules,
- denied an I-526 due to retroactive application of new rules,
- failed to consider all the evidence in the file, or
- acted capriciously
The federal judge will review your arguments and provide an opportunity of being heard. And if USCIS has wronged an investor, then relief shall be granted.
File A Fresh I-526 Application
In some instances, investors of EB5 projects may have to consider starting over with a new I-526 application.
Here, the investor shall also have the option to pursue other immigration paths to permanent residence in the U.S.
An investor can take this alternative if he can recover the capital previously invested in EB 5 projects within a reasonable amount of time.
Previously, since a new application meant lengthy processing and starting anew in the queue, this was not a viable option for parents with children about to turn 21 years.
Now, the new rules provide much-awaited relief to EB 5 applicants with priority date retention. Under this provision, EB 5 investors can retain their previous priority date in the event they have to file a new petition.
If EB 5 visa investors received I-526 denials due to issues in the EB 5 projects, they could file fresh I-526 petitions with different EB5 projects. Such investors are strong candidates for successful petitions.
But, if the I-526 denial is due to an issue in the source of funds, then we strongly recommend against filing a fresh petition unless you have access to another lawful source of funds.
“If EB 5 visa investors received I-526 denials due to issues in the EB 5 projects, they could file fresh I-526 petitions with different EB5 projects.”
Filing a fresh I-526 petition can be demoralizing and an exceptionally time taking process. Thus, the best way to avoid an I-526 denial is by preparing a detailed file. Make sure to file adequate, relevant, and timely responses to all RFEs and NOIDs. That is why it’s important to choose an experienced immigration attorney.
Houston EB5 has more than 25 years of experience in immigration through qualified real estate investments. We help you plan your investments in eligible EB 5 projects like The Allen to increase your I-526 success rate.
Schedule a consultation with our immigration specialist today to fast track your I-526 petition.
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If you have any questions about the I-526 Approvals, call our experts for more information and clarification. Reach us at 1-281-545-7943 today!
What Happens If There’s an I-526 Denial? | Houston EB5 – Houston, TX