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.
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 mail 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 2021). However, USCIS plans to raise its filing fees soon, 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).
The I-526 petition must be accompanied by several documents to substantiate your claims that:
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.
While this list of documentation is long, realize that the more proof you send to USCIS, the higher your changes of approval might be.
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, 2021, but the enterprise's bank statements show that your investment actually occurred on August 21, 2021, 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).
After you submit your I-526 petition, one of three outcomes will happen.
The first is that USCIS might 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 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.