I-526 Approval, Denial, or RFE: Outcomes and Next Steps

The I-526 Immigrant Petition by Alien Entrepreneur is a critical first step for EB-5 investors. Understanding the potential outcomes—Approval, Denial, or Request for Evidence (RFE)—and the subsequent steps required for each is essential for navigating the EB-5 process successfully.

I-526 Petition Outcomes

USCIS reviews the I-526 petition to determine if the applicant qualifies as an immigrant investor and if the proposed commercial enterprise (PCE) meets all statutory requirements, including the creation or preservation of ten full-time jobs.

1. Approval

An Approval notice signifies that USCIS has accepted the petition. This is the desired outcome, moving the applicant to the next stage of the Green Card process.

Next Steps After Approval:

• Adjustment of Status (AOS): If the investor is already in the U.S. under a valid non-immigrant visa, they can file Form I-485.
• Consular Processing: If the investor is outside the U.S., the approved petition is forwarded to the National Visa Center (NVC) for scheduling an interview at a U.S. Embassy or Consulate abroad.
• Conditional Permanent Residence: Upon successful AOS or Consular Processing, the investor receives a two-year Conditional Green Card.

2. Request for Evidence (RFE)

An RFE is not a denial; it indicates that USCIS needs more information or clarification to make a final decision. RFEs are common and often relate to:

• Insufficient evidence of job creation or preservation.
• Unclear sourcing of investment funds.
• Deficiencies in the business plan or project documentation.

Responding to an RFE:

A timely and comprehensive response is crucial. The response package must directly address every point raised by the USCIS officer. Typically, the deadline is 87 days.

Failing to submit a complete response by the deadline will almost certainly result in a denial of the petition.

3. Denial

A Denial occurs when USCIS determines that the petition does not meet the legal requirements for EB-5 classification.

Types of Denials:

1. Approval with Prejudice: Rare, indicating the deficiency is fundamental and unlikely to be remedied.
2. Standard Denial: Allows for refiling or appeal. Common reasons include failure to demonstrate qualified job creation or insufficient proof of lawful source of funds.

Options After Denial:

Investors have two primary options following a denial:

• Motion to Reopen (MTR): Used if the denial was based on an incorrect application of law or fact, or if new evidence is available that was not previously considered.
• Motion to Reconsider (MTR): Used if the decision was based on an incorrect application of law or policy.
• Refiling the Petition: Often the most practical route, especially if the denial was due to insufficient documentation that can now be corrected. The investor must address the reasons for the initial denial in the new submission.

Strategic Considerations for Success

Proactive preparation minimizes the risk of RFEs or denials. Investors should ensure all documentation adheres strictly to USCIS guidelines. For example, fund sourcing documentation must show a clear, traceable path from the initial source to the investment in the New Commercial Enterprise (NCE).

Reviewing prior Requests for Evidence and Denial notices from USCIS can offer insight into current adjudication trends. For example, recent scrutiny often focuses on the viability of projected job creation figures, requiring detailed modeling:

JobCreationModel = (DirectJobs + IndirectJobs + InducedJobs)

Conclusion

Navigating the I-526 process requires meticulous attention to detail. Whether receiving an Approval, an RFE, or a Denial, each outcome dictates a specific set of legal and procedural next steps. Consulting experienced immigration counsel immediately upon receiving any notice from USCIS is vital to preserving the investor's eligibility and timeline.