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It is advisable to ensure
that the information
provided during the EB-5
process is consistent with
prior disclosures to the
U.S. government, since
such information may be
compared to determine
the credibility of
the visa applicant.
”
with information provided in your EB-5 process.
As an example, a list of employers provided in the
I-526 petition may be compared to a prior DS-160
application for a non-immigrant visa (such as a B-1/
B-2 visitor visa) at the time of the EB-5 consular
interview. It is advisable to ensure that the information
provided during the EB-5 process is consistent with
prior disclosures to the U.S. government, since such
information may be compared to determine the
credibility of the visa applicant.
The consular officer’s questions during the interview
may reach back to any prior U.S. visas held before by
the applicant, such as a B-1/B-2 visitor visa, an F-1
student visa, J-1 exchange visitor, H-1B, L-1 work visa
or an E-1/E-2 treaty trader visa. A responsible EB-5
investor should review prior U.S. immigration history
prior to the consular interview. Furthermore, alien
smuggling is another ground of inadmissibility that an
EB-5 investor may never think will apply to him or her.
However, certain consular posts are hotbeds of alien
smuggling findings, particularly if an EB-5 investor
previously placed a child in a public school in the U.S.
as a visitor in violation of U.S. immigration law.
EDUCATE THE CONSULAR OFFICER
ABOUT EB-5 WHEN NEEDED
Consular officers receive structured training and
genera l ly have k nowledge of t he spe ci fic leg a l
requirements for the type of immigrant visa they
are adjudicating. However, certain consular posts
process far fewer EB-5 visa applicants than others,
so somet i mes consular of ficers m isundersta nd
the specific requirements for EB-5 immigrant visa
adjudication. For instance, consular officers have asked
for specific evidence of the job-creation requirement
having been met, though it is legally premature and
not a legal requirement for the issuance of the EB-5
immigrant visa. The EB-5 investor must be his or her
own best advocate at the consular interview, since
their immigration counsel is not allowed to be present
at the visa interview.
KNOW YOUR EB-5 PROJECT
The EB-5 investor must be familiar with the EB-5
project. The EB-5 investor w ill not be ex pected
to discuss the project as detailed as the project
developer; however, being familiar with the EB-5
project’s goals, budget, timeline, and current status
are highly advisable.
POST-INTERVIEW FOLLOW UP
EFFECT OF TRAVEL BAN
& PROLONGED ADMINISTRATIVE PROCESSING
A t t h e c o n c lu s i o n o f a n E B-5 i m m i g r a n t
inter v iew, t hree possible outcomes w ill follow:
approv a l, den ia l or ad m i n ist rat ive pro cessi ng.
Unde r t he T r u mp a d m i n i s t r at ion a nd c u r re nt
t r a v e l b a n 3 .0 (w h i c h l a r g e l y i m p o s e s l i m i t s
on t ravel to t he Un ited States from severa l
predominantly Muslim nations), 6 EB-5 investors
f rom b a n ne d cou nt r ie s shou ld e x p e c t f u r t he r
d e l a y s o n t h e i r i m m i g r a nt v i s a i s s u a n c e a n d
s u b s e q u e n t e n t r y t o t h e U. S . A l t h o u g h E B-5
investors from travel ban countries continue to be
scheduled for consular interview, there are many
who choose to postpone the interview. Those who
decide to at tend t he consular i nter v iew should
e x p e c t a pr ol o n g e d a d m i n i s t r a t i v e r e v i e w o f
their immigrant visa application.
Although a case-by-case waiver of the travel ban is
allowed, each consular post applies the waiver process
on an ad hoc basis, so it is highly recommended that
EB-5 investors work closely with immigration counsel
to appropriately document and present their case for a
waiver of the travel ban. 7 The consular officer is neither
obligated to make any decision about the applicability
of the travel ban at the interview nor is he or she
obligated to accept any waiver materials prepared by
the applicant. The EB-5 investor should be prepared
to explain at the interview in a simple yet convincing
manner why he or she qualifies for a travel ban waiver
and then wait for the consulate’s instructions to submit
any written materials and evidence in support of the
waiver post-interview.
Although a case-by-case
“ waiver
of the travel ban is
allowed, each consular post
applies the waiver process
on an ad hoc basis...