Questions & Answers

How do I withdraw my I-526 petition and investment funds so I can pursue EB1A?

I applied for an EB-5 TEA, non-regional center project 2 years ago. Now I want to file a petition under EB1A. How can I withdraw my I-526 petition and my investment funds? The PPM stated that, upon a denial of the I-526, the investment funds will be returned within 90 days. If the approval is granted for my I-140 petition under EB1A, will the I-526 petition be denied automatically?

Answers

• Ed Beshara

  Immigration Attorney

  Answered on January 2, 2018

  The U.S. immigration regulations allow multiple filings of EB petitions. One may file an EB-1c and EB-5 petition concurrently. One EB petition may be approved first, while the other may remain pending. However, the approval of one EB petition does not automatically cause the denial of the other EB petition. Usually, in a PPM, the return of investment funds will occur if the EB-5 petition project documentation is not approved by USCIS.

• Barbara Suri

  Immigration Attorney

  Answered on December 29, 2017

  You would need to withdraw your application.

• A Olusanjo Omoniyi

  Immigration Attorney

  Answered on December 8, 2017

  You can write to withdraw your I-526 any time prior to its approval. However, in terms of withdrawal of the I-526 investment funds, look at the terms of the PPM for the exit strategy or similar clause. If the approval for the EB1A is granted, you should not pursue the I-526 petition, but you should withdraw your petition otherwise your I-526 will continue to be processed. Generally, USCIS will not automatically suspend your I-526 petition just because another petition, I-140 petition (EB1A), has been approved.

• Charles Foster

  Immigration Attorney

  Answered on December 8, 2017

  You may withdraw your EB-5 investor petition on Form I-526 at any time. You have the absolute right to do so. However, there is no requirement that you do so. You have the right to pursue two separate independent bases to qualify for Permanent Residency at the same time. Thus, you could still file a petition under the EB-1A preference without necessarily withdrawing your I-526 petition. The real question, as you indicate, is whether or not you will be able to obtain a refund of your investment and that would depend upon the project itself. Since there is no denial, it is unlikely that the project developer would voluntarily refund your investment. If your I-140 petition is approved, it will not in any way impact your EB-5 investor petition filed on Form I-526.

• BoBi Ahn

  Immigration Attorney

  Answered on December 8, 2017

  In order to withdraw an I-526 Petition, you submit a request to withdraw the pending Petition with USCIS. In terms of the procedure for getting your investment funds returned after withdrawal, you will need to see what the exit strategy/procedure is for such an instance in the PPM. Having an approved I-140 will not automatically negate or deny the I-526 Petition.

• Belma Demirovic Chinchoy

  Immigration Attorney

  Answered on December 8, 2017

  Withdrawing the I-526 is easy; a simple letter to USCIS will do. Getting your investment back will likely not be so easy; you need to review the terms of investment for conditions under which investment funds would be returned to you (likely not many). The denial of the I-526, as contemplated by the PPM, probably does not cover circumstances where you willfully cause the denial. Finally, a filing and an approval of an I-140 will not cause your I-526 to be denied.

• Phuong Le

  Immigration Attorney

  Answered on December 8, 2017

  Check the refund provisions in your offering documents (specifically, your subscription agreement and perhaps limited partnership/operating agreement). Each offering has different refund terms. After filing your I-526 petition, some will allow a refund if you decide to withdraw before I-526 approval/denial while others may no longer allow any refund requests after I-526 filing. Check your investment terms and contact the Regional Center/NCE, explain your situation, and perhaps they can work out a deal with you.

• Jinhee Wilde

  Immigration Attorney

  Answered on December 8, 2017

  No, there is no prohibition that one could not have I-140 and I-526 pending or approved at the same time. Thus, you need to affirmatively withdraw your I-526 petition if you no longer wish to pursue it. However, I cannot advise you on whether withdrawing the petition will allow you to get your investment funds back. It depends on what the PPM states and what other partners will allow. You need to check with your lawyer on this.

• Fredrick W Voigtmann

  Immigration Attorney

  Answered on December 8, 2017

  You should be very careful about withdrawing your I-526 if you want to receive a refund of your investment funds from the project. The project may interpret the agreement such that you are entitled to a refund only in the event of a denial by USCIS on the merits of your I-526 and not if you change your mind and withdraw your I-526. It is vital that you retain immigration counsel to advise you on your rights and responsibilities vis-a-vis the agreement and the project. Also, you do not need to withdraw your I-526 petition in order to pursue an EB1A case; you just need to file the Form I-140 with supporting documents. Then, you can have a race to see which one gets approved first. The I-526 may not necessarily be denied automatically in the event your I-140 is approved.

• Lynne Feldman

  Immigration Attorney

  Answered on December 7, 2017

  Your ability to get your funds out of a non-Regional Center project depends totally on the paperwork you signed with that legal entity. You may have both the I-526 and the I-140 pending.

• Bernard P Wolfsdorf

  Immigration Attorney

  Answered on December 7, 2017

  You can withdraw your EB-5 at any time. However, getting a refund is governed by the subscription agreement and the money may not be refunded unless the Regional Center project agrees. Filing an EB-1A has nothing to do with the EB-5 filing. You can file an EB-1, EB-2, and EB-3 all at the same time. The approval or denial of an EB-1A will not impact your current EB-5 petition.

• Mitch Wexler

  Immigration Attorney

  Answered on December 7, 2017

  You can withdraw your I-526 at any time. You should know that you can concurrently file an EB1-A petition as well and, if both are approvable, they will both be approved, and you can decide which one you will immigrate under. Whether or not you can get a refund of your investment is up to the project and it''s PPM, but I can tell you it is unlikely.