United States Citizenship and Immigration Services (USCIS) has published EB-5 program data for Fiscal Year 2024, Quarter 4. The released data show a high rate of denial for I-526 petitions versus I-526E petitions.
The denial rate for I-526 petitions was around 30%, which means USCIS issued denials for almost a third of all applicants that invested funds. These applicants waited about 57 months on average for adjudication. Form I-526, also known as Immigration Petition by Alien Entrepreneur, is the petition foreign nationals use in the EB-5 investor program to invest in their own business or in a regional center investment opportunity with the petition filed prior to the EB-5 Reform and Integrity Act of 2022 (RIA)’s passage. When filing this form, applicants take their first step toward obtaining permanent residency in the United States by investing in a new business that creates at least 10 jobs for U.S. workers.
By contrast, the denial rate for I-526E petitions was around 3%. Form I-526E is used by an investor pooling his or her investment with one or more qualified immigrants participating in the EB-5 Regional Center Program with the petition filed after the RIA’s passage. As shown in the data for Fiscal Year 2024, Quarter 4, Form I-526E Petitions receive a significantly higher rate of approval than pre-RIA I-526 Petitions.
Link to What Factors Are Behind the EB-5 Denial Rates for Form I-526? What Factors Are Behind the EB-5 Denial Rates for Form I-526?
USCIS does not provide data on whether the high denial rate for pre-RIA I-526 Petitions is due to project-related issues (impacting all EB-5 investors in a project) or an issue in the investor’s funds source. EB-5 investors must present evidence that the funds invested into the EB-5 project originated from a lawful source. USCIS has been issuing requests for evidence (RFEs) targeting investor’s source of funds and path of funds (i.e. the transfer methods used to send the investment to the United States). Many RFEs for pre-RIA I-526 Petitions ask investors to produce documentation on taxes, banking records, and employment records for several decades, despite the passage of time. These types of requests are generally not sent for post-RIA I-526E Petitions. The immigration bar reports that the issuance rate of RFEs is also lower for post-RIA I-526 Petitions.
On the project side, some projects ran into issues during the pandemic and were unable to secure other financing or dealt with significant delays or the inability to move forward with their projects. Additional projects failed due to fraud, which also would result in I-526 Petition denials.
The Quarter 4 data from USCIS shows that there is some difference in adjudication by USCIS of pre and post RIA EB-5 investor petitions. Investors with I-526 Petitions filed before 2022 and that are still pending should continue to monitor their case, as USCIS may send an RFE challenging the investor’s source and path of funds. Investors should work with experienced EB-5 immigration counsel to answer any RFE requests due to the increased denial rate.