What is the possibility of a denial at the consular interview?

Unfortunately, there is always a chance of denial at the consulate but, with preparation, you have a great chance of approval. Working with an immigration attorney should get you prepared for the interview questions and documentation requirements.

The student visa application was for a temporary visa and may have been denied because of your lack of binding ties to return to your home country. Your application for conditional permanent residency is your intent to permanently reside in the U.S. The EB-5 immigration attorney will prepare you for the interview, review questions concerning the EB-5 project and supporting documentation. In addition, will review your intent to permanently reside in the U.S. There is a strong possibility you will be approved for conditional permanent residency.

It is very likely your nonimmigrant visa may have been denied on basis of failure to show nonimmigrant intent and demonstrate strong ties to your home country. Immigrant visa interviews such as for EB-5 visa are conducted very differently and there may or may not be inadmissibility issues in your case. It is highly recommended that your immigration attorney works to represent you in your consular processing case and thoroughly prepares you for the immigrant visa interview.

A student visa denial is differentthat application was discretionary as the consul had to believe you intended to return home. For this application, if the money was lawfully sourced and the jobs are likely to be created, the only issues would be grounds of inadmissibility such as criminal or health concerns. If you have competent legal counsel, they will review all these issues with you before the interview.

The denial of non-immigrant visa is usually based on 214b, which means that the consulate officer thought you showed immigrant intent (I-526 filed), which makes your application deniable for a non-immigrant visa. Now that you have the I-526 approved, you will be applying for the Immigrant Visa and the reason for the student visa denial is irrelevant, as your immigrant intent is valid. Unless you have other grounds for inadmissibility, you should be okay. Your immigration attorney should have informed you that there is a high likelihood of student visa being denied because of the pending I-526 and properly prepare you for the DS-260 (immigrant visa application) and supporting documents as well as the visa interview so that you will be approved.

I suggest you work with your counsel on this so you are fully prepared and have them explore why the student visa was denied. If it was just Sec. 214(b) indicating immigrant intent with your I-526 filing, then you should be okay.

There is always a possibility of a visa denial, but less so if you have an EB-5 petition approved. As you indicated, most denials are applicants for F-1 Student Visas or B-1/B-2 Visitor Visas. There you have a very high rate of denial because each applicant must satisfy under Section 214(b) that they do not intend to immigrate to the United States. Thus, the Consular Officer has full discretion to issue or not issue the visa for whatever reason the Consular Officer deems appropriate. If you have an approved EB-5 visa petition, your immigrant visa cannot be denied on a discretionary ground, it would have to be denied for a very specific ground such as the fact that the applicant had disqualified himself based upon a criminal record, having committed visa fraud, for a health reason or something similar.

The denial of a student visa does not necessarily mean your application for an immigrant visa through EB-5 will be denied. However, review all information related to why your student visa was denied even though a significant part of it may not be related to the EB-5 immigrant visa process. Advisably, work with your EB-5 attorney to ensure provided all necessary information in your Form I-526 and the accompanied supporting documents. Also, be prepared to answer all questions from the consular officer truthfully.

Being denied for a nonimmigrant visa (ie. student visa) is no indication that your immigrant visa processing would suffer the same fate since the basis for the visas are completely different. As long as there is no statutory bar (criminal record, health, etc) to you receiving the immigrant visa, you should be fine. You should be prepared to present a copy of your I-526 Petition just in case (although the consulate should not re-adjudicate it) and be able to discuss the investment structure, etc.

Interviews for immigrant visas are very different than student visas. The main reason student visas are denied is if the consulate believes that the candidate has immigrant intent. The intention to immigrate is no longer an issue during an immigrant visas interview. For an EB-5 interview, the consulate just wants to make sure that the investor understands what project he/she invested into, that the source of funds is clear and that there is no negative information in his or her past. Make sure you disclose your prior visa denial in your DS-260 application and make sure that all information is complete and consistent with your prior visa applications.

There is always a possibility of denial, but the likelihood is pretty remote. Your student visa denial probably was based on INA 214(b), which requires that nonimmigrant visa applicants demonstrate that they are not intending immigrants. That section of law does NOT apply to your immigrant visa application based upon your approved I-526 petition. Unless you are inadmissible to the United States under a specific ground of ineligibility (i.e., crime, fraud/misrepresentation, communicable disease, etc.), you should not worry about your consular immigrant visa interview.

There is always a possibility of denial. You should review the case (with a copy of the denial letter) with an immigration attorney before the consular interview to determine if the previous denial would affect this application. If the previous denial only involved the issue of your temporary intent for the student visa, then it might not create a problem. However, there could be a problem if that denial involved the consul finding that you were not truthful on your F-1 application.