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Can I maintain my green card petition after a failed EB-5 project?

The EB-5 project I invested in failed. No jobs will be created and I lost all of the administrative fees. My child is turning 21 soon, will my I-526 petition under the failed project be denied by USCIS? Is it possible that USCIS allows me to maintain my priority date while I transfer my case to another viable EB-5 project without resubmitting the I-526 again? Are there precedent cases governing transferring a case from a failed project to the viable one without re-filing? I do not want to pay another filing fee and legal fee when my source of funds petition is essentially the same. Do I have to withdraw my petition from the failed project and resubmit another I-526 petition under the new EB-5 project? If so, how can I still include my child as derivative under my application?

Answers

• Bernard P Wolfsdorf

  Immigration Attorney

  Answered on November 3, 2013

  Generally no. Need to file a new I-526 before your child turns 21.

• Clem Turner

  Securities Attorney

  Answered on March 4, 2013

  I expect your failed investment will result in a denial of your 829 by USCIS. You need to retain immigration counsel as soon as possible. This forum is too public and too general to provide you with the sophisticated advice you need.

• Steven Anapoell

  Securities Attorney

  Answered on February 27, 2013

  You would have to invest in another project if you have not yet had your I-829 petition approved.

• Julia Roussinova

  Immigration Attorney

  Answered on February 26, 2013

  If an EB-5 project failed, your I-526 petition will not be approved and you cannot transfer it. You will need to choose a different regional center and project as well as file a new I-526 petition. It is important that you work with an established regional center with viable projects. You will need to act quickly to file a new I-526 petition before your child turns 21. Please do not hesitate to contact me for a complementary consultation.

• Rebecca White

  Immigration Attorney

  Answered on February 26, 2013

  You may want to consider additional options for your child, as it does not sound very likely that you can compete all that you would need to to include the soon to be 21 year old child in an adjustment application.

• Rakesh Mehrotra

  Immigration Attorney

  Answered on February 26, 2013

  Yes, unfortunately you have to file another I-526 and you can include your child under 21 as a derivative.

• Ed Beshara

  Immigration Attorney

  Answered on February 26, 2013

  The recommended process is to re- file the I526 petition with a new EB-5 Regional Center project. You may include your child as long as the child is under 21 years old before you file the I 526 petition.

• Taher Kameli

  Immigration Attorney

  Answered on February 26, 2013

  There may be an opportunity. If the Project will start soon, and is in the path to start soon, then there maybe a chance. If the project has failed completely, then you need to hire an attorney immediately to give him/her the details of your case.

• Fredrick W Voigtmann

  Immigration Attorney

  Answered on February 26, 2013

  It appears that your I-829 would be denied under the facts you described. Unfortunately, there is no way to maintain the original priority date and thereby keep your 21-year old child in the case (unless the project can be saved and is considered just to have undergone a ''material change'' and not failed completely). You can file a new I-526 petition before your child turns 21; under the Child Status Protection Act, this should protect him or her and allow for inclusion in your new EB-5 case.

• Philip H Teplen

  Immigration Attorney

  Answered on February 26, 2013

  One application does not prejudice the other. I will be happy to individually review your case.

• Boyd Campbell

  Immigration Attorney

  Answered on February 26, 2013

  You may withdraw your I-526 petition, invest in another EB-5 investment project, and file a new I-526 petition. Please consider a reliable regional center.

• Michael E Piston

  Immigration Attorney

  Answered on February 26, 2013

  It’s unclear. It’s possible that USCIS might simply approve your I-526 without further request for evidence, or it might send you a request unrelated to the current project. No, your case cannot be transferred, the law does not allow such a possibility. No, there is no precedent casework regarding transferring a failed project. Quite the contrary, there are numerous cases holding that any material change in the business plan supporting an I-526 is grounds for denial of the petition. Based upon what you have stated, if you want to get permanent residency based upon a new project you will need to file a new I-526. If your child is under 21 when the I-526 is filed you can, if she''s over you can''t.

• Daniel B Lundy

  Immigration Attorney

  Answered on February 26, 2013

  You should discuss your case with an experienced EB-5 immigration attorney right away to see what can be done to preserve the status of your child as a ''child'' under the immigration laws. Once his or her 21st birthday passes, you may have fewer options, and can potentially lose the option of immigrating together as a family.

• Charles H Kuck

  Immigration Attorney

  Answered on February 26, 2013

  You clearly need VERY specific guidance on your EB-5 invesetment, not generalized advise from a website. I strongly suggest contacting one of the attorneys listed on this site to discuss your options and answer your detailed questions.

• Reza Rahbaran

  Immigration Attorney

  Answered on February 26, 2013

  If the project creates no jobs then your visa will not be approved. It is no clear from your email if your I-526 is pending or approved. If approved, you must file a new I-526 petition before a notice to deny is sent by USCIS. To avoid filing 2 separate petitions, you must file before your child turns 21. For further information please contact Rahbaran & Associates.

• Susan Pilcher

  Immigration Attorney

  Answered on February 26, 2013

  Unfortunately, a new I-526 petition with a new project would be required, and it would need to be filed prior to your dependent''s 21st birthday if your dependent is to benefit from your petition. You should consult with knowledgeable EB-5 counsel to ensure your case is handled properly in the interim.

• Roberto Ortiz

  Immigration Attorney

  Answered on February 26, 2013

  My recommendation would be to set up a telephone conference or in person appointment in order to obtain all of the information necessary to help you and your son. Please contact me at your earliest convenience.

• Stephen Berman

  Immigration Attorney

  Answered on February 26, 2013

  Unfortunately if your business failed, you cannot get the condition removed from your status.

• Jinhee Wilde

  Immigration Attorney

  Answered on February 26, 2013

  If you have not received the I-526 approval, you do not have any priority date to preserve and use. Also, as the I-526 petition is based on a particular project, there is no way for you proceed without choosing another regional center and project and resubmitting the I-526 petition. Some regional center may discount their administrative fees if you work with an attorney to transfer your investment. Also, if the SOF documents were sound for the previous filing, the immigration attorney also may discount the legal fees somewhat. As to your child, depending on how quickly he/she is turning 21, we may be able to use the Child Status Protection Act to push back the time of the age-out for the duration of I-526 pending. However, you must choose another project and file without delay.

• Neville M Leslie

  Immigration Attorney

  Answered on February 26, 2013

  You will need to file a new application under the new project.