By Jinhee Wilde, Founder & CEO | WA Law Group
Originally published in the May 2023 Regional Center Business Journal
After years of waiting for an I-526 immigrant petition for EB-5 investors to be approved, an applicant finally gets the notification from the consulate that the immigrant visa interview is scheduled. What should be done to prepare for that all important interview? Of course, there are the usual documents, such as the medical reports and the police clearance to prepare, as in all other immigrant visa interviews. One would also need to show any previous visa history, such as previous applications for a visitor visa (B1/B2), student or intern/exchange visas (F-1, M-1, J-1) or other work visas (H1B, L-1, O-1), positive or negative.
In addition to the above, there is EB-5 specific information and documentation an applicant should know and prepare. The EB-5 visa category is for a foreign investor to invest in a new, U.S. commercial enterprise to create 10+ permanent, full-time jobs. There have been many derogatory articles describing the EB-5 program as the “golden visa” program and suggesting that the wealthy foreigners are “buying” visas. In order to get the I-526 approved, the applicant had to prove to USCIS that the investment was actually made into that new commercial enterprise and that the funds were sourced legally. Because EB-5 is an investment immigration program, applicants should know and understand something about the business in which they invested. It could be unwise to show the consular officer that they invested in EB-5 project/business just to get the immigrant visa, i.e., “buying a visa.”
The main purpose of the EB-5 interview is to verify supporting documentation in the underlying petition and to make sure that the investor is not subject to any grounds of inadmissibility. While USCIS has already adjudicated the petition, the interviewer has the authority to ask anything about the petition that he/she wishes. Some consular posts have even tried to adjudicate the entire I-526 petition de novo. That being said, most officers will usually focus on the applicant’s general familiarity with the project and the terms of their investment, inadmissibility grounds, and their civil documents.
Applicants should know and should be able to explain – at least summarily – about the project or business in which they have invested. They also should be able to explain how they have gathered the funds and path-of-funds movements. In other words, they should know what was in their I-526 filings to be consistent at the interview. While Consular officers try to complete the interview in a timely manner, discrepancies between records and an interviewee’s answers could cause a delay, or even denial, in issuing a visa.
However, each EB-5 petition (I-526) filed consists of thousands of pages of documents – I feel so bad for all the trees we kill in order to submit each EB-5 petition – and it will be hard for applicants to explain the contents of these thousands of pages to the consular officer. Therefore, it is prudent for applicants to obtain from their immigration attorney, or in some cases a migration agent with whom they worked, to provide you with a chart of the money flow or summary of the source and path of funds that could be easily reviewed by the consular officer.