Chapter 3 - Immigrant Petition Adjudication
An immigrant investor must file an initial immigrant petition, either Immigrant Petition by Standalone Investor (Form I-526) or Immigrant Petition by Regional Center Investor (Form I-526E), and supporting documentation to receive employment-based 5th preference (EB-5) immigrant classification. Upon adjustment of status or admission to the United States, the immigrant investor will be a conditional permanent resident (CPR).
Each regional center investor must demonstrate that they invested, or are actively in the process of investing, lawfully obtained capital in a new commercial enterprise located within a designated regional center in the United States. The investor must also demonstrate that this investment will create at least 10 direct or indirect full-time jobs for qualifying employees.
For petitions filed on or after May 14, 2022, the investor can only file Form I-526E after the regional center files the Application for Approval of an Investment in a Commercial Enterprise (Form I-956F) (project application). The investor may file Form I-526E while the project application remains pending. However, USCIS does not make a final decision on a regional center investor’s immigrant visa petition until USCIS makes a final decision on the regional center’s associated project application.
To show that a regional center investor has invested, or is actively in the process of investing, in a new commercial enterprise located within a regional center, the investor should submit a receipt notice documenting that the regional center has filed a project application and evidence of the investment.
When adjudicating Form I-526 petitions, USCIS generally defers to prior determinations on regional center filings and reviews amendments according to the relevant law and policy at the time of the filing date.
Petitions Filed Before May 14, 2022
If the regional center requested to expand its geographic area, the instructions for Application for Regional Center Designation Under the Immigrant Investor Program (Form I-924) required that a Form I-924 amendment be filed, and approved, to expand the regional center’s geographic area. The Form I-924 amendment must have been approved before a Form I-526 petitioner may demonstrate eligibility at the time of filing their petition based on an investment in the expanded area.
There are distinct eligibility requirements at each stage of the EB-5 immigration process. Where USCIS has previously evaluated and approved certain aspects of an investment, USCIS generally defers to that favorable determination at a later stage in the process. This deference policy promotes predictability for immigrant investors, new commercial enterprises, and their employees. Deference also conserves agency resources, which should not be used to duplicate previous efforts.
As a general matter, USCIS does not reexamine determinations made earlier in the EB-5 process, and presumes that such earlier determinations were properly decided. When USCIS has previously concluded that an economic methodology is reasonable to project future job creation as applied to the facts of a particular project, USCIS defers to this determination for all related adjudications directly linked to the specific project for which the economic methodology was previously approved.
For example, if USCIS approved Form I-924 or Form I-526 presenting a comprehensive business plan and a specific economic methodology, USCIS will defer to the earlier finding that the methodology was reasonable in subsequent adjudications of Form I-526 presenting the same related facts and methodology. However, USCIS still conducts a de novo review of each prospective immigrant investor’s lawful source of funds and other individualized eligibility criteria.
Conversely, USCIS does not defer to a previously favorable decision in later proceedings when, for example, the underlying facts upon which a favorable decision was made have materially changed, there is evidence of fraud or willful misrepresentation, or the previously favorable decision is determined to be legally deficient. A change is material if it would have a natural tendency to influence, or is predictably capable of affecting, the decision.
When a new filing involves a different project from a previous approval, or the same previously approved project with material changes to the project plan, USCIS does not defer to the previous adjudication.
Since USCIS presumes that prior determinations were properly decided, USCIS does not consider a prior favorable determination to be legally deficient for purposes of according deference unless the prior determination involved an objective mistake of fact or an objective mistake of law evidencing ineligibility for the benefit sought, but excluding those subjective evaluations related to evaluating eligibility. Unless there is reason to believe that a prior adjudication involved an objective mistake of fact or law, officers should not reexamine determinations made earlier in the EB-5 process. Absent a material change in facts, fraud, or willful misrepresentation, officers should not re-adjudicate prior agency determinations that are subjective, such as whether the business plan is comprehensive and credible or whether an economic methodology estimating job creation is reasonable.
Petitions Filed On or After May 14, 2022
The approval of the regional center’s Form I-956F project application is binding for purposes of the adjudication of a related regional center investor’s petitions seeking benefits based on investment in that offering, unless:
The applicant engaged in fraud, misrepresentation, or criminal misuse;
Such approval would threaten public safety or national security;
There has been a material change that affects eligibility;
The discovery of other evidence affecting program eligibility was not disclosed by the applicant during the adjudication process; or
The previous adjudication involved a material mistake of law or fact.
In addition, upon approval of a timely filed amendment to an approved project application, any changes reflected in the amendment may be incorporated into and considered in the adjudication of a related investor’s petition.
An immigrant investor not associated with a regional center must, together with the Form I-526 petition, demonstrate that they have invested, or are actively in the process of investing, lawfully obtained capital in a new commercial enterprise located within the United States that will create at least 10 direct full-time jobs for qualifying employees. For petitions filed on or after March 15, 2022, an immigrant investor seeking to pool their investment with one or more additional immigrant investors seeking EB-5 classification must file for such classification in association with a regional center.
A petitioner must establish eligibility at the time of filing. USCIS does not approve petitions if, after filing, the immigrant investor becomes eligible under a new set of facts or circumstances. Changes that are considered material that occur after the filing of an immigrant investor petition result in the investor’s ineligibility if the investor has not obtained CPR status.
If material changes occur after the approval of the immigrant petition, but before the investor has obtained CPR status, such changes would generally constitute good and sufficient cause to issue a notice of intent to revoke and, if not overcome, would generally constitute good cause to revoke the approval of the petition. A change is material if the changed circumstances would have a natural tendency to influence or are predictably capable of affecting the decision.
Changes that occur in accordance with a business plan and other supporting documents as filed will generally not be considered material. For example, if at the time of filing the immigrant petition no jobs have yet been created, but after approval of the immigrant petition and before the investor has obtained CPR status, the investment in the new commercial enterprise results in the creation of 10 jobs in accordance with the investor’s business plan as filed, such a change would generally not be considered material.
If the organizational documents for a new commercial enterprise contain a liquidation provision that does not otherwise constitute an impermissible debt arrangement, the documents may generally be amended to remove such a provision in order to allow the new commercial enterprise to continue to operate through the regional center investor’s period of CPR status. Such an amendment would generally not be considered a material change because facts related to the immigrant investor’s eligibility would not change.
In general, if, at the time of adjudication, the investor is asserting eligibility under a materially different set of facts that did not exist when they filed the immigrant petition, the investor must file a new immigrant petition.
2. Material Changes to Regional Center Project Applications for Petitions Filed on or After March 15, 2022
In general, an approved Form I-956F project application is binding in the adjudication of associated petitions unless there has been a material change that affects eligibility. However, a regional center may submit a timely filed amendment to an approved project application reflecting such changes and, if approved, those changes may be incorporated into and considered in determining eligibility when adjudicating the related investor petitions.
If the petitioner properly filed the petition and the petitioner has met the required eligibility standards, the officer approves the petition.
After a petition has been approved and an immigrant visa is available, an immigrant investor may apply for an immigrant visa with U.S. Department of State or, if eligible, adjust status to CPR status if in the United States.
If the petitioner has not established eligibility, the officer denies the petition.
The officer should write the denial in clear and comprehensive language and cover all grounds for denial. In the denial, the officer should refer to the controlling statute or regulations and to any relevant precedent or adopted decisions. The decision must include information about the petitioner’s right to appeal to the Administrative Appeals Office and the opportunity to file a motion to reopen or reconsider.
USCIS may deny a petition if USCIS determines, in its discretion, that it was predicated on or involved fraud, deceit, intentional material misrepresentation, or criminal misuse or that the approval of such petition is contrary to the national interest of the United States for reasons relating to threats to public safety or national security.
USCIS, in its discretion, may revoke the approval of any petition for good and sufficient cause. A petition may also be withdrawn upon a written request for withdrawal of the petition filed by the petitioner.
As of May 14, 2022, USCIS may also revoke the approval of a petition on the following bases:
USCIS has reason to believe the petitioner was a knowing participant in the conduct that led to the termination of a regional center, new commercial enterprise or job-creating entity;
USCIS determines, in its discretion, that approval of the petition is contrary to the national interest of the United States for reasons relating to threats to public safety or national security; or
USCIS determines, in its discretion, that the petition was predicated on or involved fraud, deceit, intentional material misrepresentation, or criminal misuse.
E. Good Faith Investors following Program Noncompliance by a Regional Center, New Commercial Enterprise, or Job-Creating Entity
Following the termination or debarment from the program of a regional center, new commercial enterprise, or job creating entity, investors with a pending or approved petition, including petitions filed prior to enactment of the EB-5 Reform and Integrity Act of 2022, may retain eligibility under certain circumstances.
In the case of the termination of a regional center, the investor may retain eligibility if their new commercial enterprise associates with an approved new regional center (regardless of its approved geographical boundaries) or if the investor makes a qualifying investment in another new commercial enterprise.
In the case of debarment of a new commercial enterprise or job-creating entity, the investor may retain eligibility if they associate with a new commercial enterprise in good standing and invest additional capital solely to the extent necessary to satisfy remaining job creation requirements. The petitioner must generally file an amendment to their petition or otherwise notify USCIS that they continue to meet applicable eligibility requirements notwithstanding termination or debarment, as applicable, no later than 180 days after notification of termination or debarment.
In these circumstances, investors may amend their petitions to demonstrate that they meet applicable eligibility requirements. For purposes of determining eligibility, USCIS will not consider changes to the business plan underlying the amendment as a material change. In addition, the investor may include any funds obtained or recovered by the investor, directly or indirectly, from claims against third parties, including insurance proceeds, or any additional investment capital provided by the investor, as their investment capital.
Petitions that continue to meet applicable eligibility requirements in these circumstances, including following an amendment, retain the immigrant visa priority date related to the original petition and prevent age-out of derivative beneficiaries. USCIS may hold these petitions in abeyance and extend any applicable deadlines.
USCIS may not approve an investor petition or remove the conditions of a conditional resident investor if, after providing notice and an opportunity to respond, it has reason to believe that the investor was a knowing participant in the conduct that led to the termination or debarment of a regional center, new commercial enterprise, or job-creating entity.
[^ 1] See INA 203(b)(5) and INA 204(a)(1)(H). See 8 CFR 103.2(b) and 8 CFR 204.6(a) (PDF). For information on EB-5 eligibility, see Chapter 2, Immigrant Petition Eligibility Requirements [6 USCIS-PM G.2].
[^ 6] For information regarding evidence to demonstrate an investment in a new commercial enterprise, see Chapter 2, Immigrant Petition Eligibility Requirements, Section C, New Commercial Enterprise, Subsection 4, Investment in New Commercial Enterprise [6 USCIS-PM G.2(C)(4)].
[^ 7] On May 13, 2022, USCIS published the new Application for Regional Center Designation (Form I-956), replacing the Form I-924. This new form aligns with the new regional center requirements in the EB-5 Reform and Integrity Act of 2022, Division BB of the Consolidated Appropriations Act of 2022, Pub. L. 117-103 (PDF), 136 Stat. 49, 1070 (March 15, 2022).
[^ 8] If the regional center’s geographic area expansion request was submitted either through a Form I-924 amendment or investor petition filed before February 22, 2017, and the request was ultimately approved, USCIS continues to adjudicate additional investor petitions associated with investments in that area under prior policy guidance issued on May 30, 2013. See EB-5 Adjudications Policy (PDF, 829.48 KB), PM-602-0083, issued May 30, 2013.
[^ 9] For a discussion of what constitutes a comprehensive business plan, see Chapter 2, Immigrant Petition Eligibility Requirements, Section B, Comprehensive Business Plan [6 USCIS-PM G.2(B)]. See Matter of Ho (PDF), 22 I&N Dec. 206 (Assoc. Comm. 1998).
[^ 10] See Kungys v. United States, 485 U.S. 759, 770-72 (1988).
[^ 14] For discussion of eligibility and evidentiary requirements for standalone petitioners, see Chapter 2, Immigrant Petition Eligibility Requirements, Section D, Creation of Jobs [6 USCIS-PM G.2(D)].
[^ 17] See Kungys v. United States, 485 U.S. 759, 770-72 (1988).
[^ 20] See Volume 7, Adjustment of Status, Part A, Adjustment of Status Policies and Procedures [7 USCIS-PM A]. For information on concurrent filing of the adjustment of status application either at the time of filing the immigrant visa petition or while the petition is pending, see Volume 7, Adjustment of Status, Part A, Adjustment of Status Policies and Procedures, Chapter 3, Filing Instructions, Section C, Concurrent Filings [7 USCIS-PM A.3(C)]. See Chapter 7, Removal of Conditions [6 USCIS-PM G.7] for the process of removing conditions on residence.
[^ 25] See 8 CFR 205.1(a)(3)(iii)(C). An employment-based preference petition is automatically revoked upon written notice of withdrawal filed by the petitioner less than 180 days after approval unless an associated adjustment of status application has been pending for 180 days or more.