Handling EB-5 Application Denials

1. Common Reasons for EB-5 Application Denials

EB-5 applications can be denied for various reasons, and understanding these reasons is crucial for avoiding common pitfalls. Some of the most common reasons for EB-5 denials include:

1. Insufficient Investment Amount:

2. The investment does not meet the minimum threshold ($800,000 for Targeted Employment Areas or $1,050,000 for standard investments).

3. Non-Qualifying Investment:

4. The investment is not considered "at risk" or lacks sufficient evidence of being a genuine commercial enterprise.

5. Failure to Prove Lawful Source of Funds:

6. The applicant cannot adequately document the lawful origin of the investment funds.

7. Incomplete or Inaccurate Documentation:

8. Missing documents, inconsistent information, or errors in the application.

9. Lack of Job Creation:

10. The investment does not create or maintain at least 10 full-time jobs for U.S. workers.

11. Issues with Regional Center Projects:

12. If investing through a Regional Center, problems with the Regional Center's compliance or project approval can lead to denials.

13. Misrepresentation or Fraud:

14. Providing false information or misrepresenting facts on the application.

2. Steps to Appeal an EB-5 Application Denial

If your EB-5 application is denied, you have options to appeal or take corrective action:

1. Review the Denial Notice Carefully:

2. Understand the specific reasons for the denial as listed in the USCIS notice.

3. Consult with an Immigration Attorney:

4. A qualified immigration attorney can review your case, identify issues, and recommend next steps.

5. File a Motion to Reopen or Reconsider:

6. A Motion to Reopen (Form I-290B) is used when new evidence is available that could change the outcome.

7. A Motion to Reconsider (Form I-290B) is used if you believe the denial was based on a legal or factual error.

8. Appeal to the Administrative Appeals Office (AAO):

9. If you disagree with the denial, you may appeal to the AAO within 30 days of the decision.

10. Reapply with Corrections:

11. If the denial was due to errors or missing information, you may reapply with a corrected application.

12. Consider Alternative Visa Options:

13. If your EB-5 application is denied, you may explore other investment-based visas (e.g., E-2 Visa) or employment-based visa categories.

3. Retrieving Investment Funds After an EB-5 Denial

If your EB-5 application is denied, recovering your investment funds depends on the structure of your investment agreement:

1. Direct Investment (Self-Managed Business):

2. If you invested directly in your own business, you retain full control over the funds and business assets.

3. Regional Center Investment:

4. Review the terms of your investment agreement with the Regional Center.

5. Many Regional Centers offer conditional refund policies in the event of application denial.

6. If the agreement includes a refund clause, follow the instructions to request a refund.

7. Negotiation with Project Developers:

8. If your investment is in a specific project, communicate with the project developer to negotiate a refund.

9. Legal Action (If Necessary):

10. If a refund is denied without just cause, you may consider legal action to recover your funds.