EB-5 investors seeking U.S. permanent residency will now face new vetting procedures due to national interest, fraud and misrepresentation.
The new vetting process, implemented by USCIS in August, allows the U.S. immigration agency to use discretion when deciding or approving a request. For EB-5 investor cases, it applies where fraud, misrepresentation, criminal misuse, or threats to national security are suspected.
However, according to attorney Matthew Kolodziej from JIA Law Group, these factors were always grounds for denial.
“But they are now formally emphasized in the adjudication process,” he said. “Note that this vetting might include review of social media accounts and internet postings deemed by the administration to be a threat to U.S. national security or otherwise ‘anti-American’.”
Meeting basic EB-5 program eligibility requirements is no longer enough
In practice, this means that USCIS officials have broad discretion when evaluating EB-5 petitions, not just basic eligibility requirements.
“The applicant must also show that their case deserves a favorable decision from [USCIS],” says US immigration lawyer Kristi Ngo from Berry Appleman & Leiden. “In other words, being eligible is necessary, but not enough on its own.”
EB-5 attorney Marjan Kasra from Lawmaks clarifies that the USCIS update does not change how it reviews basic criteria, such as investment amounts, job creation rules, and Targeted Employment Areas (TEA) or non-TEA requirements, which remain unchanged.
“The only impact is in cases where something problematic exists,” Kasra says. “If the investor has submitted fraudulent documents, misrepresented their source of funds, or has connections to organizations deemed hostile to the United States, officers are now directed to give those facts very significant negative weight. In other words, USCIS has always had this discretion, but now it is spelled out.”
Rigorous documentation and caution are key aspects in an EB-5 application
Ngo adds that USCIS officers can now give “overwhelmingly” negative weight to activities supporting terrorist organizations, promoting anti-American ideologies or activities, and endorsing antisemitic terrorism or ideologies.
“This policy is consistent with recent government changes to social media vetting policies, which use social media content to identify support of antisemitism or terrorist organizations,” she adds. “Applicants should be careful with what they post on social media and express in public statements.”
If their EB-5 investment is perceived to pose a threat—be it economic, political, or social—to national security or public safety, the petition may be denied.
Given that the EB-5 application is a complex process, investors should seek legal counsel experienced in immigration and these matters.
Kasra makes these overall recommendations for investors to better prepare:
- Understand that the USCIS policy does not raise the standard for EB-5.
- Ensure that the source of funds is fully documented and consistent.
- Avoid shortcuts or incomplete explanations that could be misread as misrepresentation.
- Recognize that while most EB-5 cases will not involve discretion at all, those with red flags will face a much steeper challenge.
“If you are a clean EB-5 investor, nothing changes,” she said. “If there is anything questionable, the consequences are now clearer and harsher.”
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