Our EB-5 was denied today. Would it be possible to get it approved if we sent more evidence or whatever else they need to get more information? Will they accept it? If we apply with another case and file again, is the process still 10 months or will the time be reduced because we already did a case before it?
Once your case has been denied, USCIS will not accept any further evidence or information you may submit. You may have an opportunity to appeal the denial and also the option to re-apply. Please note that you must wait the current processing time, as the processing time of the previous filing will not track onto your newly filed I-526 petition. Please consult an experienced EB-5 attorney for professional guidance to minimize immigration risks.
There may be opportunities to appeal the denial, but re-applying is always an option. When re-applying you must consider children who have since turned 21 years of age in the time between filing and the denial (as they will no longer be considered derivative beneficiaries). Since this will be an entirely new filing (even though most of the package will be the same) you will have to wait for the current processing time. That is, you will not receive any credit for the original submission.
You can file a motion to reopen or an appeal to the Administrative Appeal Office using form I-290B which the proper office must receive within 33 days of the decision. You may include additional evidence with that motion and it will be accepted if properly filed on time. You may also file another EB-5 petition but the processing time will not be affected because you have filed another petition. If you would like to scan and email (or fax) your decision to me I would be happy to review it without charge and tell you what I think you should do about it.
Once an application is denied the options are:
1. Appeal the denial based on questions of fact or law. New evidence may not be considered 2. File a new petition with the new evidence.
If there is a denial on a I-526 petition, you can always appeal. However, in our opinion the quickest process is to re-file the I-526 petition. Please note the reasons for the denial and therefore supply the previously missing documentation in the new filing of the I-526 petition. The delays may be less as more I-526 petitions may have been approved and deference is given to the project documentation in previously filed I-526 petitions. Of course we are assuming the re-filing is with the same EB-5 Regional Center Project.
It is important to first understand which petition was denied, as EB-5 investors will file two petitions over the course of time. Regardless of whether it was an I-526 immigrant petition by alien entrepreneur or an I-829 Petition by entrepreneur to remove conditions, I would recommend that you contact a seasoned immigration attorney to review the history of the case including the initial filing, any requests for evidence (RFE) from the immigration service as well as any responses to such RFEs. It would also be critical to review the notice of denial to determine if there is a basis to refile. If your project is associated with a Regional Center I would recommend you contact them as well for information. Currently processing times of I-526s have increased to 18 months the time would not be reduced based on your previous filing.
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