CONSEQUENCES AND STRATEGIC RESPONSES TO EB-5 PROJECT DENIALS FOR INVESTORS— BY JOEY BARNETT
faith by the investor.
An I-956F denial creates extreme hardship for investors whose immigration strategy relied on timely project approval and who failed to maintain their non-immigrant status. The approval of an I-765 / I-131 combo card does not provide status. Although many believe that being given the right to work and travel authorization( EAD / AP) means they are“ safe,” without maintaining their underlying status, the applicant is still vulnerable. Even an F-1 student who travels and uses their advance parole no longer holds a valid nonimmigrant status.
WHAT ARE THE IMMEDIATE CONSEQUENCES OF A I-956F DENIAL? For the New Commercial Enterprise( NCE) and regional center, the EB-5 project is ineligible for new EB-5 capital unless the denial is overturned. Also, no new Form I-526E Investor Petition can be filed referencing the I-956F receipt number. These entities must take administrative action within 30 days and address any resulting reputational harm and / or investor damage control.
A regional center or NCE can appeal an I-956F denial or file a motion to reopen and / or reconsider, and subsequently litigate if there are merits in an attempt to reverse USCIS’ s decision( or refile a new form with updated, compliant terms). However, until there is a final decision, the denial renders the related investor I-526E petitions subject to denial. For many applicants, this I-denial creates a domino effect, especially if they have filed for adjustment of status on Form I-485 while in the U. S., have failed to maintain lawful nonimmigrant status, or have traveled and reentered on advance parole.
Those with a valid H-1B visa who have resumed this status upon return, and not activated their EAD work cards, are protected from deportation. Each immigrant investor associated with the EB-5 project where the Form I-956F has been denied is likely to get a Request for Evidence(“ RFE”), Notice of Intent to Deny(“ NOID”), or outright petition denial.
Those regional centers or NCEs that fail to provide investors with notice of the I-956F denial will be in for a shock after receiving
If the investor filed an I-485 concurrently with the I-526E investor petition, both petitions would likely be denied together with derivative family members such as spouses and minor children a Form I-526 denial. Regional Centers that accept investors who file based on pending Form I-956F should be working diligently to improve the adverse consequences to investors.
If the investor filed an I-485 concurrently with the I-526E investor petition, both applications would likely be denied together with derivative family members such as spouses and minor children. Unless the foreign national has maintained lawful non-immigrant status, unlawful presence may begin after 180 days, most likely triggering a three-or 10-year re-entry bar, if there are departures from the U. S. And once the I-485 is denied, use of EAD / AP is not allowed. Additionally, Section 245( k) protection may no longer apply if the original adjustment of status petition is denied. This section enables persons who have been without valid non-immigrant status and out of status for up to 180 days to apply for adjustment, provided they were admitted as non-immigrants and not as parolees. Finally, aging-out children may lose eligibility to be included in the adjustment application, unless they are protected under the Child Status Protection Act( CSPA). The exception would be where USCIS allows the discretionary transfer of the underlying basis before the actual I-526E is denied.
In the event of the adjustment of status form If the I-485 is denied because the underlying I-526E is no longer viable, the investor who concurrently filed will accrue unlawful presence unless they have maintained valid underlying lawful nonimmigrant status, such as an F-1, H-1B, or L-1, and will therefore be subject to removal( deportation) proceedings.
The dreaded Notice to Appear( NTA) would then arrive. This is a document that initiates removal proceedings. It means the U. S. government wants to remove or deport the applicant, and they must appear before an Immigration Judge at a court hearing to defend their right to stay in the U. S. Filing a Motion to Reconsider( MTR) on a denied Form I-526E or Form I-485 does not prevent the USCIS from issuing an NTA. In some cases, USCIS may hold off on removal proceedings while the motions are pending.
Ignoring an NTA has dire consequences,
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