By Joey Barnett
Since the enactment of the EB-5 Reform and Integrity Act (RIA), it has been possible to obtain approval of the EB-5 project via a Form I-956F, Application for Approval of an Investment in a Commercial Enterprise.
A denial by the U.S. Citizenship and Immigration Services (USCIS) of this form has serious adverse immigration complications for investors, particularly for those already in the United States who have not maintained lawful status after filing the EB-5 petition.
Similarly, persons filing a concurrent adjustment of status whose Form I-526E is denied also face potential harsh consequences if they have not maintained their underlying status.
There are key consequences, timing considerations, and practical steps that investors must take following a Form I-956F denial.
WHAT IS FORM I-956F AND WHY DOES IT MATTER?
RIA requires Form I-956F for all regional center-affiliated projects to request approval of an EB-5 project. However, it must only be filed by the regional center, not approved by USCIS, before immigrant investors can file their I-526E petition. If a visa is available under the Final Action Date category (or if allowed, the Date for Filing category), an EB-5 applicant can also submit the Form I-485 Application to Adjust Status together with Form I-765 Employment Authorization Card and Form I-131 Advance Parole travel authorization. When these forms are submitted simultaneously, it’s called concurrent filing.
While a denial of an I-956F may be appealed, this rejection can place a foreign national who has applied for adjustment of status and not maintained underlying status in serious trouble, or more directly, in immigration deportation court.
Immigrant investors are not even notified when the USCIS notifies the regional center that their I-956F has been denied. There are often very few legal options for investors who have allowed their non-immigrant status to expire, even if there has been no fraud or bad faith by the investor.
An I-956F denial creates extreme hardship for investors whose immigration strategy relied on timely project approval and who failed to maintain their non-immigrant status. The approval of an I-765/I-131 combo card does not provide status. Although many believe that being given the right to work and travel authorization (EAD/AP) means they are “safe,” without maintaining their underlying status, the applicant is still vulnerable. Even an F-1 student who travels and uses their advance parole no longer holds a valid nonimmigrant status.
WHAT ARE THE IMMEDIATE CONSEQUENCES OF A I-956F DENIAL?
For the New Commercial Enterprise (NCE) and regional center, the EB-5 project is ineligible for new EB-5 capital unless the denial is overturned. Also, no new Form I-526E Investor Petition can be filed referencing the I-956F receipt number. These entities must take administrative action within 30 days and address any resulting reputational harm and/or investor damage control.
A regional center or NCE can appeal an I-956F denial or file a motion to reopen and/or reconsider, and subsequently litigate if there are merits in an attempt to reverse USCIS’s decision (or refile a new form with updated, compliant terms). However, until there is a final decision, the denial renders the related investor I-526E petitions subject to denial. For many applicants, this I-denial creates a domino effect, especially if they have filed for adjustment of status on Form I-485 while in the U.S., have failed to maintain lawful nonimmigrant status, or have traveled and reentered on advance parole.
Those with a valid H-1B visa who have resumed this status upon return, and not activated their EAD work cards, are protected from deportation. Each immigrant investor associated with the EB-5 project where the Form I-956F has been denied is likely to get a Request for Evidence (“RFE”), Notice of Intent to Deny (“NOID”), or outright petition denial.
Those regional centers or NCEs that fail to provide investors with notice of the I-956F denial will be in for a shock after receiving a Form I-526 denial. Regional Centers that accept investors who file based on pending Form I-956F should be working diligently to improve the adverse consequences to investors.
If the investor filed an I-485 concurrently with the I-526E investor petition, both applications would likely be denied together with derivative family members such as spouses and minor children. Unless the foreign national has maintained lawful non-immigrant status, unlawful presence may begin after 180 days, most likely triggering a three-or 10-year re-entry bar, if there are departures from the U.S. And once the I-485 is denied, use of EAD/AP is not allowed. Additionally, Section 245(k) protection may no longer apply if the original adjustment of status petition is denied. This section enables persons who have been without valid non-immigrant status and out of status for up to 180 days to apply for adjustment, provided they were admitted as non-immigrants and not as parolees. Finally, aging-out children may lose eligibility to be included in the adjustment application, unless they are protected under the Child Status Protection Act (CSPA). The exception would be where USCIS allows the discretionary transfer of the underlying basis before the actual I-526E is denied.
In the event of the adjustment of status form If the I-485 is denied because the underlying I-526E is no longer viable, the investor who concurrently filed will accrue unlawful presence unless they have maintained valid underlying lawful nonimmigrant status, such as an F-1, H-1B, or L-1, and will therefore be subject to removal (deportation) proceedings.
The dreaded Notice to Appear (NTA) would then arrive. This is a document that initiates removal proceedings. It means the U.S. government wants to remove or deport the applicant, and they must appear before an Immigration Judge at a court hearing to defend their right to stay in the U.S. Filing a Motion to Reconsider (MTR) on a denied Form I-526E or Form I-485 does not prevent the USCIS from issuing an NTA. In some cases, USCIS may hold off on removal proceedings while the motions are pending.
Ignoring an NTA has dire consequences, including the likely entry of an order to be removed in absentia (in your absence), which results in a ban from returning to the U.S. for 10 years or more. Investors must attend every hearing, or their options will narrow dramatically.
WHAT OPTIONS DO EB-5 INVESTORS HAVE AFTER AN I-956F DENIAL?
If the EB-5 capital can be legally retained and the investor meets source-of-funds requirements, they may file a new I-526E form using another preferably approved project, with an approved I-956F.
However, depending on the timing of filing the new EB-5 petition, the investor and family may need to exit the U.S. and, if possible, lawfully re-enter with a new visa before filing an adjustment, or most likely wait abroad for a consular appointment after their I-526E approval. There is no priority date retention in this situation, unless USCIS takes affirmative action to debar the sponsoring regional center or debar the NCE.
As indicated, a regional center may challenge an I-956F denial in federal court under the Administrative Procedure Act (“APA”). If possible, investors may also seek to delay the adjudication of their respective I-526E and I-485 applications until litigation is resolved. If a court deems the denial arbitrary, procedurally deficient, or legally incorrect, it will take time and could result in the loss of opportunity to file a new I-526E concurrently.
Maintaining communication with the regional center and NCE is important, as I-956F motions or litigation affects every related investor.
PROMPT ASSESSMENT OF THE SITUATION IS CRUCIAL
A denied I-956F form can severely impact an investor’s immigration plans, especially for those already in the U.S.
Immediate action is essential for investors and their attorneys to understand the denial’s implications, assess lawful presence, and develop alternative strategies. Filing motions or considering a departure and re-entry strategy may also be necessary.
Although the EB-5 process requires an “at risk” investment, having an approved I-956F strengthens an investor’s position. Adjustments of status in the U.S. without this approval carry additional risks, particularly if the EB-5 investor’s non-immigrant visa status is not maintained.
In the current strict immigration environment, seeking guidance from experienced EB-5 professionals is crucial for those facing denials to take timely and effective action.
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