How to File an I-526 Petition: Tips for EB-5 Green Card Applicants

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. (Or if you do not know whether you are eligible, please read about the eligibility rules and the application process and see 8 U.S.C. § 1153(b)(5).)

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 the time comes to file the I-526 petition, you will need to gather supporting documents (discussed in detail below), complete Form I-526, and submit the entire package to United States Citizenship and Immigration Services (USCIS). The petition should also include a detailed explanation of the commercial enterprise itself, your investment in it, 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 $3,675 (as of 2022). However, USCIS often raises its filing fees, and will reject your petition and return it to you if you do not include the proper fee. Always confirm the amount before mailing, by visiting the USCIS Form I-526 informational Web page. This page also contains the address where you can file the petition.

At this time, 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 have or are actively investing into a commercial enterprise
• your investment money was obtained through lawful means,
• your investment will generate the requisite amount of jobs for U.S. workers, and
• you will be involved in the day-to-day management of the enterprise or have a policy-formulation role.

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

1. Commercial enterprise documents: If 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, and offering memorandum and subscription agreement. If using your investment to expand an existing business or purchase an existing business with simultaneous reorganization or restructuring, also submit: 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 might include copies of the enterprise's bank statements that show that the enterprise has received your investment, evidence of assets that you purchased to be used by the enterprise, promissory notes, security agreements, or funds held in escrow. If investing only $500,000 due to the commercial enterprise's location in a Targeted Employment Area (TEA), 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: 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, records showing sale of real property, mortgages, bank statements, savings accounts, sale of stock certificates, dividends certificates, profit/loss statements, and promissory notes. 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. 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 typically involves a 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. Thus your best bet is to get professional assistance in drafting it.
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, or that you will be managing the enterprise through policy formulation.

While this list of documentation is long, realize that the more proof you send to USCIS, the higher your changes of approval might 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 for completing some of the trickier sections of the I-526 (referring to the version issued by USCIS on 11/12/19):

Part 2, Information About Your Investment: This 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.

Part 3, Information About the New Commercial 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.

This part of the form also requires EXACT dates (mm/dd/yyyy, that is, month, day, and year) 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, 2022, but the enterprise's bank statements show that your investment actually occurred on August 21, 2022, USCIS could question the validity of your petition, possibly resulting in a denial.

Part 4, Information About the Job-Creating Entity: Fill this in if your initial investment was made in a business structure, such as a partnership, that plays an intermediary role and then invests or loans money to the business that will actually be employing people.

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 approves your I-526 petition. Then 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 might 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's 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 give a deadline by when you need to send it. 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. The standard timeframe to submit a response is 87 days, so act quickly.

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

It's also possible that USCIS will issue a Notice of Intent to Deny (NOID). This basically says, "We DON'T think you qualify for EB-5, but here's 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 additional information. This is clearly the worst-case scenario. If this happens to you, you can certainly file another I-526 petition. The USCIS denial notice will explain the reasons for the denial. If you decide to reapply, be sure 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.