Filing an I-526 Petition: Tips for EB-5 Green Card Applicants

In order to apply for a green card based on an investment in U.S. business, you'll need to complete the I-526 petition. Here are some tips, and an overview on the application.

The I-526 petition is filed by foreign nationals who are investing in a commercial enterprise in the U.S. in order to obtain a green card in the employment-based fifth preference category (EB-5). If you are at the I-526 petition stage, then you have already determined that you are eligible to file for an investment-based green card.  If you do not know whether you are eligible, please read our other articles on the eligibility rules and the application process.

This article focuses on how to file the I-526 petition and explains the documents you should include with it.

How Do I Prepare the I-526 Petition?

When you are ready to file the I-526 petition, you will need to gather your supporting documents (discussed in detail below), complete Form I-526, and mail the entire package to United States Citizenship and Immigration Services (USCIS). The petition should also include a detailed explanation of the commercial enterprise, your investment, the source of your investment, and how you fulfill the requirements for a green card under the EB-5 category.

The petition must also include the correct filing fee, which is currently $1,500 (as of 2015). However, filing fees are subject to change, and USCIS will reject your petition and return it to you if you do not include the proper filing fee. Therefore, you should always confirm the correct filing fee by visiting the USCIS Form I-526 informational Web page. This Web page also contains the address where you can file the petition.

Please note that at this time, the premium processing service is not available for I-526 Petitions (this process allows USCIS to adjudicate certain petitions within 15 days for an extra fee).

What Do I Need to Include in My I-526 Petition?

The I-526 petition must be accompanied by several documents to substantiate your claims that:

  • you are investing into a commercial enterprise
  • your investment was obtained through lawful means, and
  • your investment will generate the requisite amount of jobs for U.S. workers.

USCIS reviews these documents, and the information you provide on the I-526 Form, and decides whether you qualify for a green card based upon your investment into a U.S. commercial enterprise. It is very important to provide as much of the required documentation as possible, to help ensure a prompt and successful approval of your petition.

1.  Commercial enterprise documents: If you are using your investment to create an entirely new commercial enterprise, you should submit the following documentation (as applicable): articles of incorporation, partnership agreements, certificate of limited partnership, state business license, Federal Employment Identification Number (FEIN), business bank accounts, offering memorandum and subscription agreement.     

If you are using your investment to expand an existing business or purchase an existing business with simultaneous reorganization/restructuring, you should also submit the following documents: certificate of merger/consolidation, proof, certificate of purchase, shareholder agreement approving the purchase/restructure/reorganization, certified financial reports, and stock purchase agreements.

2.  Investment documents: You must provide evidence of your investment into the commercial enterprise. These documents may include copies of the enterprise’s bank statements that evidence the enterprise has received your investment, evidence of assets that you purchased that will be used by the enterprise, promissory notes, security agreements, or funds held in escrow.

If you are investing $500,000 due to the commercial enterprise’s location in a Targeted Employment Area (TEA), you must also submit evidence of the TEA's existence, such as a letter from the state’s governor or state agency dealing with unemployment confirming the TEA status.

3.  Lawful Source of Investment documents:  Please note, this is often one of the MOST important aspects of the I-526 petition. You should include as much detailed information as possible and really demonstrate to USCIS the lawful trail of your investment funds. The requirements for this part of the I-526 petition vary greatly from applicant to applicant and depend upon how you obtained the funds you are investing (such as through your employment, an inheritance, a loan, stock profits, and so on). Depending on your own circumstances, you might gather such evidence as: tax returns for the past five years, sale of real property records, mortgages, bank statements, savings accounts, sale of stock certificates, dividends certificates, profit/loss statements, or promissory notes.

Please note that if you obtained the investment funds from another person (such as a family member or business partner) you must show the lawful source of THAT person’s funds. For example, let’s say your father is the CEO of his own company. The profits from his business are sufficient for you to invest in a commercial enterprise and qualify for EB-5. Your father loans you the money for the investment. In addition to providing a copy of the promissory note, you must also submit documentation of his business profits, the business’s license, registration, and anything else relevant and convincing.

4.  Job Creation documents: You must submit proof that your investment will create the requisite number of full-time jobs for qualified U.S. workers. This evidence is typically a highly detailed business plan that explains how the enterprise will need at least ten workers in order to perform its operations. This business plan will be closely scrutinized by USCIS and your best bet is to get professional assistance in drafting the business plan.

5.  Documentation of Your Management of the Enterprise: You must include a statement of your position title and duties within the enterprise. In the alternative, you can submit evidence that you are a corporate officer, a member of the board of directors, or a partner. USCIS will review this statement to confirm that you will be engaged in either the exercise of day-to-day managerial control of the enterprise, or that you will be managing the enterprise through policy formulation.

While this list of documentation is quite long, realize that the more proof you send to USCIS, the higher your changes of approval may be.

Tips on Completing the I-526 Form

The I-526 form requires information about you, your investment, and the commercial enterprise.  The following are helpful hints to consider when completing the I-526:

1. Part 3, Information About Your Investment: This part of the form requires EXACT dates (mm/dd/yyyy) of your investment into the enterprise. It is very important the dates you provide can be substantiated by the evidence you are enclosing. For example, if you state on the form that your investment occurred on August 1, 2015, but the enterprise’s bank statements state that your investment actually occurred on August 11, 2015, USCIS may question the validity of your petition, possibly resulting in a denial.

2. Part 4, Additional Information About the Enterprise: It is VERY important you select the correct description of your enterprise. USCIS uses this data to analyze your entire petition.  For example, if you select that the new commercial enterprise is resulting from the purchase of a new business, USCIS will check to make sure that your petition shows how you are restructuring or reorganizing the business. If you select the wrong choice, USCIS could look for evidence in your petition that is not there, resulting in a denial.

3. Part 4, Composition of the Petitioner’s Investment: This part of the form asks for specific financial information for the new commercial enterprise.  If you do not feel confident answering these questions on your own, consult professionals. This information will also be cross-referenced by USCIS, and if you include data that is unsupported – or worse, contradicted – by your evidence, USCIS will likely deny the petition.

4. Part 5, Employment Creation Information: Among other things, this part of the form asks for a brief description of your duties, activities, and responsibilities. USCIS uses this information to confirm that you will be engaging in managerial activities. Typically, a brief description is not actually enough information to provide to USCIS. Most applicants will give a brief description, but then include the phrase “Please see enclosed support letter for further explanation” in order to let USCIS know that additional evidence is included in the petition (and of course, include a support letter).

What Happens After I Submit My I-526 Petition?

After you submit your I-526 petition, one of three outcomes will happen.

The first is that USCIS may approve your I-526 petition. This is clearly the best-case scenario. Upon approval of the I-526, you can either obtain your immigrant visa at a U.S. consulate in your home country, or if you are in the U.S. already, and in valid immigration status, you may be able to file the I-526 along with an I-485 application to obtain your green card here in the U.S. (adjust status). (But speak to an immigration attorney to confirm your eligibility to adjust status.)

The second possible outcome is that USCIS issues a Request for Evidence (RFE) in response to your petition. When USCIS issues an RFE, it is basically saying, “We THINK you probably qualify for EB-5, but we aren’t absolutely sure, so please send us additional information.” The RFE will list USCIS’s requests for additional documentation and will also tell you the deadline for when you need to send the additional information. It is of the utmost importance that you respond within this deadline, as failure to do so will result in a denial of your petition.

Once USCIS receives the additional information, it will review the new materials and either approve or deny the petition.

It is also possible that USCIS may issue a Notice of Intent to Deny (NOID). When USCIS issues a NOID, it is basically saying, “We DON’T think you qualify for EB-5 but here is your last chance to prove that you do.”  You then have to provide the requested documentation by the deadline in the NOID. Typically, NOIDs request much more documentation than RFEs.

The third possible outcome is that USCIS denies your petition outright, without asking for any additional information. This is clearly the worst case scenario. If this happens to you, you can certainly file another I-526 petition. The USCIS the denial notice will explain the reasons for the denial.  If you decide to reapply, it would be a good idea to carefully study the reasons for denial, and talk to an immigration attorney, so that you can proactively address these issues in your subsequent petition and hopefully avoid another denial.

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