CONSEQUENCES AND STRATEGIC RESPONSES TO EB-5 PROJECT DENIALS FOR INVESTORS— BY JOEY BARNETT
If the EB-5 capital can be legally retained and the investor meets source-offunds requirements, they may file a new I-526E form using another preferably approved project, with an approved I-956F
including the likely entry of an order to be removed in absentia( in your absence), which results in a ban from returning to the U. S. for 10 years or more. Investors must attend every hearing, or their options will narrow dramatically.
WHAT OPTIONS DO EB-5 INVESTORS HAVE AFTER AN I-956F DENIAL? If the EB-5 capital can be legally retained and the investor meets source-of-funds requirements, they may file a new I-526E form using another preferably approved project, with an approved I-956F.
However, depending on the timing of filing the new EB-5 petition, the investor and family may need to exit the U. S. and, if possible, lawfully re-enter with a new visa before filing an adjustment, or most likely wait abroad for a consular appointment after their I-526E approval. There is no priority date retention in this situation, unless USCIS takes affirmative action to debar the sponsoring regional center or debar the NCE.
As indicated, a regional center may challenge an I-956F denial 1in federal court under the Administrative Procedure Act(“ APA”). If possible, investors may also seek to delay the adjudication of their respective I-526E and I-485 applications until litigation is resolved. If a court deems the denial arbitrary, procedurally deficient, or legally incorrect, it will take time and could result in the loss of opportunity to file a new I-526E concurrently.
Maintaining communication with the regional center and NCE is important, as I-956F motions or litigation affects every related investor.
PROMPT ASSESSMENT OF THE SITUATION IS CRUCIAL A denied I-956F form can severely impact an investor ' s immigration plans, especially for those already in the U. S.
Immediate action is essential for investors and their attorneys to understand the denial ' s implications, assess lawful presence, and develop alternative strategies. Filing motions or considering a departure and re-entry strategy may also be necessary.
Although the EB-5 process requires an“ at risk” investment, having an approved I-956F strengthens an investor ' s position. Adjustments of status in the U. S. without this approval carry additional risks, particularly if the EB-5 investor’ s non-immigrant visa status is not maintained.
In the current strict immigration environment, seeking guidance from experienced EB-5 professionals is crucial for those facing denials to take timely and effective action.
Maintaining communication with the regional center and NCE is important, as I-956F motions or litigation affects every related investor
JOEY BARNETT
Joseph“ Joey” Barnett is a partner at the firm WR Immigration, specializing in EB-5 and business immigration. He is licensed in Illinois and Wisconsin and focuses exclusively on immigration and nationality law. With extensive experience, Barnett represents investors seeking permanent residency through USCIS-designated Regional Centers. He also advises U. S. businesses on creating and managing these centers to secure EB-5 capital for job creation. Currently, he serves as Vice Chair of AILA’ s EB-5 Committee and is a member of the IIUSA Editorial Board. Barnett has been included in The Best Lawyers in America ® and recognized as a Top 25 Immigration Attorney by EB-5 Investors Magazine since 2023.
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