How should EB-5 investors get prepared for the embassy interview? -

How should EB-5 investors get prepared for the embassy interview? Staff

By Anayat Durrani

When the U.S. Citizenship and Immigration Services (USCIS) approves an I-526 or I-526E petition, the next step is the consular interview process. For EB-5 investors abroad, it occurs at the U.S. Consulate or Embassy in their home country, and for applicants already in the U.S., the interview takes place at a USCIS office.  

Experts say the interview is an important step and EB-5 applicants should understand the process.

“Contrary to common misconceptions, the interview is not a mere formality, and applicants must be well-versed in presenting their case to ensure a smooth process,” says Prashant Ajmera, an immigration lawyer and founder of Ajmera Law Group.

He cautions that misrepresentations or gaps during the interview could lead to denial of an applicant’s EB-5 visa.

“Embarking on the EB-5 immigration journey is a significant step, and for many investors, the consulate interview is a crucial phase that demands meticulous preparation,” says Ajmera. 

What to expect during the EB-5 interview at the embassy  

Investors should view the interview as a critical part of their immigration journey, explains Ajmera, adding that “consistency, organization, and confidence play pivotal roles in ensuring a successful outcome.” He advises that interviewees seek professional help for a smoother EB-5 process.

“Definitely be ready to go because the more prepared they are, the less nervous they will be,” says Sam Adair, executive partner at Graham Adair, Inc. “Good counsel will conduct a mock interview to prepare the subject.”

During the interview, the EB-5 applicants will be asked questions about their application, background, and reasons they would like to reside in the U.S. to determine if they are eligible for the visa. Any family members of the applicant will also be required to attend the visa interview.  

“Approach the interview with confidence. The officer expects investors to narrate their life story confidently. Any uncertainty may raise doubts about document authenticity,” says Ajmera. 

Applicants can expect the interview to typically last up to 45 minutes, so preparation is key.

Ajmera notes that as the EB-5 landscape evolves, it is imperative that investors “approach the consulate interview with thoroughness and professionalism, recognizing that this phase significantly contributes to the overall success of their immigration endeavor.”

Documentation the EB-5 investors must bring to the interview  

A key challenge for EB-5 applicants, Ajmera adds, is the sheer bulk of the documentation, which often has intricate financial details.  

“It is not uncommon for investors to lack immediate access to crucial financial information during the interview,” says Ajmera. “To address this, thorough preparation and professional assistance are highly recommended.”

Adair says working with immigration attorneys ensures the accuracy of these documents in advance, but investors should also study these documents.  

The physical documentation that investors should bring to their interview includes their birth certificates, passports, and color photographs, marriage/divorce certificates if applicable, proof of dependents, police records if applicable, proof of employment, a business plan for the project, and a copy of the DS-260 Immigrant Visa and Alien Registration Application and I-526 petitions.  

“They will also need to bring evidence of their funds, such as bank statements, that are/will be contributing to the project proving it was transferred out of escrow,” says Adair.

Malik advises bringing all updated civil documents and project offering docs, such as subscription documents, which were signed and countersigned by the project, and any other copies of the I-526.

“Refresh yourself on your source of funds which were used to make the investment,” says Preeya Malik, managing director of Step Global Immigration. “Refresh yourself on the project in which you invested including any current updates.”

Types of questions EB-5 applicants must prepare for in the interview

The consulate officer will carefully review the documentation and ask questions about the petition.  

“Always truthfully answer a question from the officer,” says Malik.

The applicant should understand the documents they bring and know how to answer any related questions, such as questions about their I-526 petition, the new commercial enterprise (NCE) they invested in, and the source of the capital they used for the EB-5 investment.

“The consulate officer’s objective is to assess the eligibility of the applicant and their dependent family members for visas,” says Ajmera. “This involves a careful review of supporting documentation to identify any grounds for inadmissibility.”

Adair adds the questions presented to the applicant will relate to what appears on a previously filed Form DS-260. For example, he says these will touch upon “specifics to do with the enterprise and project they are investing in.”

It includes the status and relevant dates, a business plan, general overview of the business, jobs anticipated to be created with the funding, and status of other investors. It will also include dates and statuses of immigration filings and specifics regarding the source and transfer of the invested funds, with proof, and what it goes towards, he says.

“They may also be asked about previous immigration statuses and trips to the U.S.,” says Adair. “Any inaccuracies in the interview can jeopardize their approval, so they should be sure to be well informed on what appears on their Form DS-260.”

Malik says once the interview concludes and the officer is satisfied that the person in front of them is, in fact, the investor in the application, the passports will then be stamped with a visa for entry that is typically valid for six months.  

“Within these six months, the first entry must be made in the U.S.,” says Malik.

Interview for EB-5 investors already living in the U.S.

Lawfully present applicants already in the U.S. need to file Form I-485 for an adjustment of status (AOS) while filing the same documentation for the EB-5 visa investors petitioning from outside the U.S. do, explains Adair.

“Depending on the previous status they hold, the USCIS may or may not elect to have the investor interview at the embassy. In all cases, the process may be easier as they have already established residency and have approved statuses, meaning they were cleared by the USCIS,” says Adair.

Malik says filing for an AOS “is generally just paperwork and does not result in an interview within the U.S.” She says status is adjusted from the applicant’s visa to a permanent resident, green card holder.

Meanwhile, other visa holders already in the U.S. can also find the EB-5 program a promising route. The EB-5 Reform and Integrity Act of 2022 gives H-1B visa holders the option of concurrent filing.

“H-1B holders, in particular, can simultaneously submit multiple petitions allowing them to participate in the EB-5 program while continuing to work under the H-1B visa, and while holding pending green card status,” says Adair.  

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