By: Joseph Barnett
One of the more unfortunate aspects of practicing EB-5 law is when, to no fault of a good-faith immigrant investor, an EB-5 project fails to materialize, and the immigrant investor faces a denial to an immigration benefit and the loss of the EB-5 investment. Even worse is the case where, prior to obtaining a conditional green card, U.S. Citizenship and Immigration Services (USCIS) or the U.S. Department of State (DOS) learn of “material change” which would require the immigrant investor to file a new Form I-526 petition – and obtain a dreaded new priority date.
In these situations, it is critical to have top EB-5 attorneys who can provide innovative immigration strategies against a Notice of Intent to Revoke (NOIR) the approval of a Form I-526 or to compel the approval of a Form I-829. Here are three considerations:
1. Show Me the Money. Perhaps most important is documenting what happened with the EB-5 investment capital after it was released from escrow. If there is not a clear path of funds to the entity most responsible for job creation, USCIS will question whether the EB-5 investment capital was sufficiently placed “at risk.” If funds have been misappropriated through fraudulent activity, additional investment capital can be contributed to the new commercial enterprise (under separate management) to show continuous good faith to meet the EB-5 requirements. If the business plan listed now-unavailable private investment as part of the capital stack, working with a “white knight” to fund the EB-5 project or modifying the scope of the business in a manner which does not constitute a “material change” is possible.
2.Show Me the Jobs. EB-5 is first and foremost a job creation program – the immigrations benefit only comes after demonstration that at least 10 full-time positions for qualifying employees have been created or can be created (at the I-526 stage) or have been created or will be created within a reasonable time (at the I-829 stage). Retaining experienced EB-5 immigration attorneys who understand the nuances of these standards, in both law and in practice, and who can provide the best options to an immigrant investor in EB-5 project restructuring is paramount. EB-5 attorneys can also assist with administrative appeals and litigation in the federal courts to overcome mistakes of law by USCIS.
3.Plea in Immigration Court. The fight isn’t over if your I-829 has been denied. In such cases, the U.S. government is authorized to issue a Notice to Appear (NTA) in removal (deportation) proceedings – in which the government has the burden to prove that the EB-5 requirements have not been met. In most jurisdictions, removal proceedings can take many years to conclude after issuance of an NTA. This is a highly specialized area of immigration law made even more complicated by its rarity in an immigration court, which operates under a separate set of rules than USCIS. There may also be eligibility for cancellation of removal in certain circumstances. Having experienced immigration court counsel who understand EB-5 law is essential – those who stand up for your rights and make the correct argument in court may be the difference between a green card and removal.
Wolfsdorf Rosenthal, LLP, recently recognized by U.S. News – Best Lawyers 2019 “Best Law Firms” for its expertise in immigration law, has the experience, expertise, and infrastructure to help with all of your EB-5 immigration needs. We are one of the fastest growing U.S. law firms specializing exclusively in immigration and nationality law and have offices in Los Angeles, New York, and the Bay Area, with attorneys available to attend EB-5 removal proceedings.