What Happens if the EB-5 Visa Application is Denied?
The EB-5 visa program is a popular option for foreign investors seeking to obtain permanent residency in the United States. The program requires investors to make a significant investment in a U.S.-based commercial enterprise that creates at least ten jobs for U.S. workers. While many investors are successful in obtaining an EB-5 visa, some may face the possibility of having their application denied. In this article, we will discuss what happens if an EB-5 visa application is denied, including the appeals process and options for investors.
Reasons for Denial
The first step in understanding what happens if an EB-5 visa application is denied is to understand the reasons why applications are denied. There are several reasons why an EB-5 visa application may be denied, including:
- Failure to demonstrate that the investment was made in a commercial enterprise that creates at least ten jobs for U.S. workers.
- Failure to demonstrate that the investment capital was lawfully obtained.
- Failure to meet the minimum investment amount.
- Submission of false or misleading information.
Options for Investors
If an EB-5 visa application is denied, investors have several options. The first option is to file an appeal with the United States Citizenship and Immigration Services (USCIS). The appeal must be filed within 30 days of the denial and must include a detailed explanation of why the denial was incorrect.
Investors can also choose to reapply for an EB-5 visa. However, they will need to address the issues that led to the denial and ensure that their application is complete and accurate.
Administrative Appeals Office
The Administrative Appeals Office (AAO) is responsible for adjudicating appeals related to the EB-5 visa program. If an investor’s application is denied, they can file an appeal with the AAO.
The AAO is an independent office within the USCIS that reviews appeals of decisions made by USCIS officers. The AAO has the authority to overturn a USCIS officer’s decision and to grant an EB-5 visa.
Federal Court Review
If an investor is not satisfied with the outcome of the appeal to the AAO, they may be able to seek federal court review. This is a more complicated and expensive option, but it may be necessary in certain circumstances.
To seek federal court review, the investor must file a lawsuit in federal court within 60 days of receiving the final decision from the AAO. The lawsuit must be based on a claim that the USCIS’s decision was unlawful or unconstitutional.
Federal court review can be a difficult and expensive process, and it is important for investors to work with an attorney who has experience with federal court litigation. The attorney can help the investor understand the legal issues involved in the case and develop a strategy for presenting their case in court.
Working with an Attorney
Investors who are facing the possibility of having their EB-5 visa application denied should work closely with an attorney or other professional. An attorney can help the investor understand the reasons for the denial and develop a strategy for addressing the issues that led to the denial.
An attorney can also assist with the appeals process and with reapplying for an EB-5 visa. It is important to work with an attorney who has experience with the EB-5 visa program and who can provide guidance and support throughout the process.
Impact on Investment
If an investor’s EB-5 visa application is denied, they may be concerned about the impact on their investment. In most cases, the investor’s funds will be returned to them if their application is denied.
However, if the investor’s application is denied due to fraud or other illegal activities, they may face additional consequences. In some cases, the investor may be subject to civil or criminal penalties, and their funds may be seized by the government.
Conclusion
Having an EB-5 visa application denied can be a difficult and stressful experience for investors. However, investors have options for appealing the decision and for reapplying for an EB-5 visa. By working with an attorney and understanding the appeals process, investors can maximize their chances of success in the EB-5 visa program.
