Most people are aware of the EB-5 Immigrant Investor Program. It's a somewhat complicated programme that offers U.S. permanent residency and a path toward citizenship for foreign nationals who invest a certain amount of capital in the country and create at least ten full-time jobs in the same area where they made this investment. Interestingly, if you were to think about risks regarding this programme, failing EB-5 projects is probably not on the list.

Should you be concerned with what happens if an EB-5 investment fails? The answer is yes. But why should an EB-5 investment failure be such a big deal?

The EB5 Visa Process

The EB5 visa process is complicated. Applying for the final green card can take three to five years. Professional investment management services such as make the process easier, but you can also go down the winding road yourself. The process consists of two parts: pre-approval and investment progression phases. 

Investors must first file Form I-526, Immigrant Petition by Alien Entrepreneur, and wait for USCIS approval before applying for permanent residency. The first step in the process is to find a suitable project that meets the requirements of the EB-5 programme. This stage typically takes 6 to 12 months from start to finish.

The second step is to invest at least $1,050,000 or $800,000 in “General Areas” or “Target Employment Areas.” After investing this money, an investor must create ten full-time jobs for U.S. workers within two years of receiving conditional green cards from USCIS. 

The investor may then apply for permanent residency after completing these steps and proving that they have maintained all required investments over time.

What Happens To Your Money If An EB5 Investment Fails?

A lot can happen to your money if an EB-5 investment fails. Here's what could happen, depending on the circumstances surrounding the failure:

Your Money Is Gone

Even though the novel idea behind your financial investment is towards creating value, there isn't much chance you'll get your money back after a failed EB5 project. Instead, your chances will depend on whether or not USCIS approved the project before things took a downturn. 

If USCIS approved the project before it failed, the government would still honour the petition. However, if USCIS didn't approve the project before it failed, they can choose not to honour it — even if it was approved previously.

Your Visa May Be At Risk

Suppose an EB5 project fails, and you've already received permanent residency status. In that case, it's unlikely that DHS will revoke your status or deport you unless you've done something wrong (such as committing fraud).

On the other hand, if you're waiting for permanent residency status, it can be revoked if the DHS believes that the investment failed due to some fault. This flag could be anything from not contributing enough money to providing false information about yourself or your partner company when applying for citizenship.

You May Qualify For A Hardship Waiver Or Other Forms Of Relief From Removal

If your investment has failed, but you are in good standing with the USCIS and have not otherwise violated the terms of your visa status, you may be able to apply for a hardship waiver or other forms of relief from removal.

A hardship waiver allows you to reapply for an immigrant visa and shows that your failure to maintain lawful permanent resident status was due to circumstances beyond your control. To qualify for this type of waiver, you must show that there is no other way to resolve your immigration problem other than to leave the United States.

When Should You File An I-526 Withdrawal Request?

If your project fails or is not moving forward as originally planned – or even if it has reached its goal, but your business model doesn't work out – you might consider withdrawing your I-526 petition.

You can file this request up until 120 days after filing Form I-924B for USCIS review (if there are no other issues). It's important to note that withdrawing does not automatically mean that USCIS will grant your request; however, it does give them enough time to determine whether your request qualifies for approval or not.

How To Avoid Being Left Out In The Cold

You've invested in an EB5 investment, and it's gone south. You're not alone. The good news is that there are steps you can take to avoid being left out in the cold when an EB5 investment fails.

First and foremost, if your EB5 investment fails, start by contacting your attorney as soon as possible. If you're unsure who your attorney is or how to contact them, contact the project developer to know who they used for legal services. 

If you have trouble getting in touch with them or their legal team, consider hiring another attorney specialising in real estate law or immigration law to help get you through this difficult time.

Final Thoughts

So, if an EB5 project fails, what can you expect? It's unlikely that you'll find yourself in a situation where you need to worry about whether your visa or green card is at risk, provided you acted with prudence and did your due diligence. 

It's not impossible, but the likelihood of this happening is low if both parties take all the proper precautions and invest in good faith.