Navigating Project Selection: Evaluating EB-5 Projects with Pending vs. Approved I-956F Petitions
Navigating Project Selection: Evaluating EB-5 Projects with Pending vs. Approved I-956F Petitions
A metaphorical take on strategic differentiation between a pending and approved I-956F
One prevalent misconception in the EB-5 industry, since the passage of the EB-5 Reform and Integrity Act of 2022 (RIA), is that an EB-5 project with an approved I-956F is lower risk than a project with a pending I-956F. In the opinion of this author, it is much more important for potential investors to evaluate risk from a totality perspective than through the narrow scope of I-956F approval on its own.
For an illustrative example: think of your immigration journey as taking a voyage across an ocean to reach your final destination (aka permanent Green Card). However, every voyage must start this journey at the dock, evaluating potential ships (projects) to take you across the ocean (EB-5 immigration process).
United States Citizenship and Immigration Services (USCIS) issues gangway planks for boarding (I-956F approval).
Looking out at the open water ahead, you might see storm clouds gathering. These clouds could take the form of economic downturns that impact project viability, program expiration risk, and regulatory changes, to name a few. Choosing the right boat at this stage can make all the difference later down the line.
At the dock, the first boat you come across is the SS Rural Regatta which advertises “I-956F approved, board now!” However, the boat is a 15-foot, single engine, center console, with a crew of two: a captain and first mate. This boat might be able to make the journey across the ocean for you, but the conditions must be perfect. Ask yourself: how is it going to fare if any storm squalls come along? Will the boat take on water? Will it be a bumpy and stressful ride in open-air? Has the captain even undertaken this journey before?
Across the dock, you see the USS CMB, a tried-and-true yacht with years of seafaring experience, but the sign above it says “I-956F pending.” Even though the I-956F is pending, people are queuing up already, just waiting for the harbormaster to lower the gangway plank (issue the I-956F approval). Dozens of crew members are working hard to prepare for the voyage, and the captain has made this journey almost 100 times. All of this indicates that this ship is as equipped as possible to navigate any unforeseen storms ahead.
When the harbor master finally lowers the gangway plank (I-956F approval), it already might be too late, as there’s a queue of travelers who waited until this moment to try and board. The savvy travelers secured their spot because they already recognized the strongest ship (with the most experienced crew and captain) that will provide the best odds of reaching their final destination.
It is important to remember that USCIS adjudicates the I-956F at the preponderance of the evidence standard, which is the lowest threshold of proof in the United States legal system. This means that USCIS only has to come to the conclusion that the project is “more likely than not” or have a “fifty percent and a feather” chance at success to happen, based on the business plan. That’s slightly more likely than guessing correctly on a coin flip. This is why some of the “boats” might be advertising I-956F approval but not even appear seaworthy (capable of completing the project). If an adjudicator thought that the project had a 49.9% chance of failure, they are still required by law to approve the I-956F petition.
Beyond the metaphor, understand that your outcome depends much more on I-956F approval alone. A Regional Center’s track record, coupled with the developer’s execution history, are far more predictive of outcomes. These factors ultimately contribute to a successful investment and smooth immigration process for you and your family.
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About A.J. Hogan
During his tenure at United States Citizenship and Immigration Services (USCIS), A.J. helped shape EB-5 policy, adjudication practices, and economic evaluation standards.
In that role, he led a team of economists responsible for adjudicating EB-5 I-956F petitions and assessing the credibility of business plans and economic impact analyses.
A.J. also adjudicated the very first I-956F project petition and played a key role in policy updates, regulatory guidance, and public outreach efforts supporting the implementation of the EB-5 Reform and Integrity Act of 2022.
As Economic Strategy and Data Insights Manager at CMB Regional Centers, A.J. is focused on economic strategy, project vetting, policy integration, and data analysis.
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About CMB Regional Centers
CMB has assisted over 6,900 investor families, from over 100 countries, in their pursuit of immigrating to the United States through America’s EB-5 Immigrant Investor visa program. CMB currently maintains a 100% project approval rate on all 93 partnerships that have undergone USCIS adjudication.
To date, CMB has repaid over $1.5 billion USD to investors.
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