The EB5 application could fail principally due to one of two reasons. One reason could be project related. The other would be individual applicant related. If the project cannot create or deem to create at least the required number of jobs then the applicant’s EB5 visa could be denied. At the same time, if the applicant’s proof of source of funds is not satisfactory to the USCIS authorities, he could get an RFE (request for evidence). If he cannot produce the type of evidence USCIS is looking for, his application could be denied. Typically, applicants who fund their investments with earned income or sale of inherited property where the official sale price supports the required investment amount, do not receive RFE’s. Other accepted funding methods of the required investment are collateralized loans or gifted funds. In each of these latter cases, there is still a need for proof of funds. In the loan case, USCIS scrutinizes the source of funds for the purchase of the collateral used for the loan. In the “gifted funds” case the donor would have to prove how he earned the funds he is donating the applicant. In summary, as long as the project can create the required number of jobs, the applicant does not have an issue with source of funds, and the applicant has a clean personal record, his/her EB5 application would most likely be approved.
As a service provider, we are often called upon to assist with RFEs. Another consideration that might trigger a failure is a poorly-justified business plan. This could include financial projections that are not based on anything other than conclusive assumptions, or projecting job creation that is much higher than is really needed. The bottom line is credibility.
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