What if an EB-5 petition is Denied?

When an investor works with a qualified attorney and reputable regional center, the risk of an I-526 or I-526E petition being denied by U.S. Citizenship and Immigration Services (USCIS) is low. Nevertheless, denials can occur and have become frequent for certain types of petitions and nationals of certain countries. 

At AIIA, we provide support to every bona fide immigrant investor whose petition has been denied. We believe that as many qualified investors as possible should be able to immigrate to the United States. If your petition has been denied, please contact AIIA immediately to learn how we can help you.

Formally, investors whose I-526 or I-526E petitions are denied may appeal the decision to the USCIS Administrative Appeals Office (AAO). Petitions are reviewed de novo, i.e., all issues of fact, law, policy, and discretion are re-evaluated without deference to the USCIS officer who initially denied the petition. See AAO Practice Manual § 3.4. Please contact your immigration attorney before appealing your denial to the AAO. The appellate process is highly intricate, complicated, and beyond the scope of ordinary understanding. Unless you are an attorney and member of a U.S. state bar in good standing with experience in immigration law, you will not be able to succeed on your own. A good lawyer is the difference between the success and failure of an appeal.

Appeals to the AAO must be filed within 30 days after receiving personal service of the denial or 33 days after the denial was mailed to the petitioner. See AAO Practice Manual § 3.7(c). This means that you must act quickly to appeal your decision or else lose the right to appeal.

If the AAO declines to reverse USCIS’s decision, an investor may seek judicial review in the U.S. District Court for their judicial district. Judicial review is sought by filing a civil lawsuit against USCIS. Again, please initiate legal action against the government only through an attorney.

Alternatively, in certain circumstances, it may be possible to appeal an I-526/I-526E denial to the U.S. District Court directly, following the Supreme Court of the United States’s ruling in Darby v. Cisneros, 509 U.S. 137 (1993). Please discuss this option with your attorney. N.B.: This option is not available to immigrant investors who filed petitions through regional centers after the passage of the EB-5 Reform and Integrity Act of 2022 (i.e., post-RIA investors). Such post-RIA investors must appeal I-526/I-526E denials to the AAO first. See Immigration and Nationality Act (INA) § 203(b)(5)(P)(ii).

I-829 Denials

Immigrants whose I-829 Petition to Remove Conditions on Permanent Residence is denied must know that such denial leads to the revocation of Lawful Permanent Resident (LPR) status held at the time. This makes the immigrant subject to removal proceedings for deportation from the United States.

However, LPR status will not be immediately revoked upon the denial of an I-829. To facilitate the appeals process, an investor will retain conditional LPR status post-denial while they appeal the denial until a final administrative order is issued to deny the appeal, usually by the Board of Immigration Appeals. At this point, LPR status is formally revoked and an investor begins to accrue unlawful presence in the United States, which has adverse consequences for their ability to remain in the country.

Before revocation, however, your LPR card (i.e., green card) will remain valid until the expiry date listed while your administrative appeals are underway. Thereafter, USCIS will issue temporary I-551 stamps in your passport to indicate that LPR status is maintained, for the duration of the appeals process.

Importantly, an I-829 denial cannot be appealed to the AAO. Instead, an investor has several options in the first instance to appeal the denial (successive steps in the appellate process are also stated):

1. File a motion to re-open/re-consider the denial with USCIS → If denied (or motion is granted but initial denial is upheld), contest the denial before an Immigration Judge (IJ) in removal proceedings → If denied, appeal the decision to the Board of Immigration Appeals. → If denied, seek judicial review of the decision in the U.S. District Court for your judicial district.(N.B.: See more about judicial review in option 2 below.)
2. Seek federal judicial review directly by suing USCIS in the U.S. District Court for your judicial district. → If relief is denied, appeal the decision to the U.S. Court of Appeals for your appellate circuit. → If relief is denied, file a petition for a writ of certiorari at the Supreme Court of the United States.(N.B.: This option may trigger the issuance of a Notice To Appear before an IJ, meaning that removal proceedings against an investor and judicial review of the denial may, briefly, run concurrently. If the appeal is successful, it will collaterally stop the removal proceedings).
3. Seek de novo review of the I-829 denial at removal proceedings before an IJ without re-opening the case at USCIS. If denied, pursue judicial review as aforementioned.

Leaving the United States while Appeals are Underway

Investors should never leave the United States while appealing the denial of an I-829 petition. An inconsistency between USCIS regulations and Department of Homeland Security regulations means that U.S. Customs and Border Protection (CBP), which is governed by DHS regulations, believes that an I-829 petition’s denial entails the automatic revocation of LPR status, even though this is not the case. See 8 CFR § 216.6(d)(2).

CBP, in general, is perpetually suspicious of foreign nationals entering the United States. Some CBP officers will actively seek out reasons to deny admission at a port of entry, with I-829 petition denials being one such reason. It is practically impossible to contest CBP’s decisions at the port of entry, nor is it wise to do so. Statutes give CBP wide latitude and discretion to admit or deny entry to non-U.S. citizens at ports of entry, often without due process. To avoid even a scintilla of complication with CBP, never leave the United States while an appeal is pending, no matter how exigent your reasons for travel. Preserving lawful status in the U.S. is your top priority during the appellate process and is worth every sacrifice.

Concerning I-526/I-526E denials, applicants may leave the United States without issue if they already possess valid non-immigrant status with dual intent (i.e., H-1B/H-2A, O-1, P-1, L-1, and qualifying dependents). “Dual intent” status allows the holder to possess the intent to immigrate to the United States, such as by adjusting status within the country, while in possession of a “non-immigrant” status. An immigrant who has filed an I-526 or I-526E petition evinces a clear intent to immigrate to the United States. So long as one maintains a dual intent status, they will be permitted to re-enter the United States without issue, ceteris paribus. 

For all other statuses — e.g., F-1, J-1, B-1/B-2, E-2, TN, and dependents — it is advisable not to depart the United States after an I-526/I-526E petition is denied. All other non-immigrant statuses without “dual intent” require the holder to possess “non-immigrant intent” (i.e., that the holder possesses a permanent foreign residence they have no intention of abandoning, to which they will return after the conclusion of their current status). After filing an I-526/I-526E petition, an investor clearly evinces immigrant intent that disqualifies them for future issuances of non-immigrant statuses or admission to the United States on such bases. See INA § 212(b). In such circumstances, it may be possible to leave and return to the United States, though investors must consult an immigration attorney before doing so.

Finding an Attorney

AIIA can refer you to experienced and trusted attorneys who are best equipped to assist investors with denied petitions. We frequently work with dozens of attorneys and advise our members on appealing denials. As the circumstances of each denial and immigrant are different, we encourage you to find legal counsel best suited to your situation.

If you trust your current attorney, it is best to continue retaining them for your appeal, as they know the details of your case better than any other counsel.

However, if the reason for your denial is a failed ‘source of funds’ analysis, AIIA recommends choosing another attorney to handle your case. In our experience, attorneys who fail to properly present and justify the source of funds to USCIS in the first instance are likely ill-equipped to appeal those denials successfully.