Within the EB-5 industry, there has been increasing anecdotal concern that U.S. Citizenship and Immigration Services (USCIS) is denying Form I-526E petitions outright rather than first issuing a Request for Evidence (RFE) or Notice of Intent to Deny (NOID). Immigration attorneys, regional centers, and investors have reported cases in which petitions were denied without the applicant being given an opportunity to supplement the record or respond to perceived deficiencies.
While these concerns are real, the broader data suggests the issue is more nuanced than a wholesale shift toward denials. Approval rates for post-Reform and Integrity Act (RIA) I-526E petitions remain strong, reportedly as high as 97%. However, there appears to be a meaningful trend toward stricter adjudications and less willingness by USCIS to “cure” filings through RFEs or NOIDs. In practical terms, investors should assume that the initial filing package may be their only opportunity to establish eligibility.
USCIS Is Not Required to Issue an RFE or NOID
One important misconception is that USCIS must issue an RFE or NOID before denying a petition. In reality, USCIS has broad discretion in how it adjudicates immigration filings. If an adjudicator determines that the petition, as filed, does not establish eligibility for the requested benefit, the agency may deny the case outright.
RFEs and NOIDs are generally used when USCIS believes additional evidence could potentially resolve a deficiency or clarify an issue. However, if the officer concludes that the petition lacks required evidence, contains material inconsistencies, or suffers from a defect that cannot easily be cured, the officer may proceed directly to denial.
This distinction has become increasingly important in the EB-5 context, particularly after the enactment of the RIA.
Why USCIS Appears to Be Taking a Harder Line
There are several reasons why investors and practitioners are perceiving adjudications as becoming stricter.
Increased Integrity and Fraud Prevention Measures
The RIA significantly expanded compliance obligations for regional centers, project sponsors, migration agents, and investors. Congress clearly intended the law to increase oversight and reduce fraud risks within the EB-5 program.
As a result, USCIS appears to be applying heightened scrutiny to both investors and projects. Officers may now be less willing to overlook ambiguities or documentation gaps that previously might have resulted in an RFE.
This is especially true where USCIS perceives potential concerns involving source of funds and the path of investment capital.
Source of Funds Has Become the Critical Issue
Perhaps the single most important area of scrutiny in modern I-526E adjudications is source-of-funds documentation.
Under EB-5 rules, investors must demonstrate that their investment capital originated from a lawful source and that the funds were transferred through a transparent and traceable path into the EB-5 investment. While this requirement has always existed, adjudicators now appear to be applying it with more rigor.
Cases involving loans, gifts, business income, real estate sales, or international fund transfers often require extensive supporting documentation. USCIS may expect to see years of tax returns, banking records, property records, loan agreements, corporate ownership documents, payroll evidence, and currency exchange documentation. Any unexplained deposits, inconsistencies, missing records, or commingling of funds can raise concerns.
Loan-based source-of-funds cases appear to face especially close scrutiny. USCIS has historically focused on whether a loan is properly secured by the investor’s personal assets and whether the indebtedness structure complies with EB-5 requirements. Informal lending arrangements, affiliated lenders, or poorly documented collateral structures may create a higher risk of denial.
In many of the anecdotal cases being discussed within the industry, the issue does not appear to be that USCIS denied otherwise approvable petitions arbitrarily. Rather, the agency often seems to conclude that the petition failed to sufficiently document lawful source and path of funds at the time of filing. While in the past, this may have been met with an RFE or NOID, it appears that more of these situations are moving straight to a denial.
What Investors Can Do to Improve Their Chances of Success
The current adjudication environment strongly favors investors who approach the I-526E filing process conservatively and comprehensively.
Treat the Initial Filing as the Only Opportunity
Investors and attorneys should prepare every I-526E petition as though USCIS will adjudicate the case solely based on the initial submission. Any weakness, ambiguity, or missing documentation should ideally be addressed proactively before filing.
Prioritize Strong Source-of-Funds Documentation
Comprehensive documentation remains the best protection against adjudication risk.
Investors should work closely with experienced EB-5 counsel to ensure that every stage of the source and path of funds is supported by objective documentary evidence. If there are unusual circumstances, such as cash-heavy businesses, historic transactions, family transfers, or missing records, those issues should be explained clearly and directly in the filing.
Ensure Consistency Across All Records
USCIS frequently compares information across immigration filings, tax documents, corporate records, and prior visa applications. Even relatively minor inconsistencies can create credibility concerns.
Investors should ensure that information provided in the I-526E petition aligns with prior immigration filings, financial records, and public documentation wherever possible.
The above article is intended for informational purposes only. Anyone with a specific issue related to an I-526E petition should consult with an experienced immigration attorney.
