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Process and timing

Denial and revocation

Also called petition denial, revocation, revocation on notice, notice of intent to revoke, NOIR.

Denial and revocation are the two ways USCIS refuses an EB-5 petition: a denial rejects a petition that has not established eligibility, and a revocation withdraws an approval already granted, which is why an approved EB-5 petition is never finally settled.

What it decides

A denial must state the specific reasons, cite the controlling law, and tell the petitioner of the right to appeal to the Administrative Appeals Office or move to reopen or reconsider on Form I-290B within 30 days of service, 8 CFR 103.3(a)(2)(i). Under 8 U.S.C. 1155 USCIS may revoke any approved petition for good and sufficient cause, effective as of the date of approval, so the petition counts as never approved. Revocation on notice under 8 CFR 205.2 needs a notice of intent, a chance to answer with evidence, and a written decision, and the appeal window is only 15 days. Approval also lapses automatically if the petitioner withdraws it within 180 days, 8 CFR 205.1(a)(3)(iii). Two EB-5 grounds added in 2022 make revocation mandatory: the Secretary shall deny or revoke where approval is contrary to the national interest, or involved fraud, misrepresentation or criminal misuse. These grounds take effect as of the date of the determination, not of approval, and can terminate the permanent resident status of the spouse and children. No court may review a national interest denial or revocation, though constitutional and legal questions survive on a petition for review.

Governed by 8 U.S.C. 1155 (INA 205) for discretionary revocation for good and sufficient cause, effective as of the date of approval; 8 U.S.C. 1153(b)(5)(N) and (O) for the mandatory EB-5 grounds, both reading shall deny or revoke, with (N)(iv)(II) and (O)(iii)(II) making those revocations effective as of the date of the determination and terminating the status of the spouse and children, (N)(v) for the bar on judicial review save constitutional and legal questions, and (P) for administrative appellate review at the Administrative Appeals Office; (O)(i) opens Subject to subparagraph (M), so the good faith investor protection limits the fraud ground. 8 CFR 205.1(a)(3)(iii) for automatic revocation on a withdrawal within 180 days and 8 CFR 205.2 for revocation on notice with the 15 day appeal at 205.2(d); 8 CFR 103.3(a)(2)(i) for the 30 day appeal of a denial. USCIS Policy Manual, Volume 6, Part G, Chapter 3, Section D confirms the denial content and the notice of appeal rights. The authorityUrl carries the statutory (N), (O) and (P) grounds but not 8 U.S.C. 1155 or the CFR procedure, which are cited above.

Where this is explained properly

Pages here that go into denial and revocation rather than mentioning it.

Related terms

  • Administrative Appeals OfficeThe Administrative Appeals Office, or AAO, is the USCIS body that reviews denials of EB-5 investor petitions, regional center applications and project approvals, looking at the whole record afresh rather than deferring to the officer below, and no court may take up an EB-5 determination until its review has been exhausted.
  • Motion to reopen or reconsiderA motion to reopen or reconsider is a request on Form I-290B, costing $800, that asks the USCIS office which made the latest decision in a case to look at it again, and it must be filed within 30 calendar days of that decision, or 33 days where the decision came by mail.
  • Form I-290BForm I-290B, Notice of Appeal or Motion, is the single form carrying three different requests: an appeal to the Administrative Appeals Office, a motion to reopen on new facts, and a motion to reconsider on legal error.
  • Good faith investor protectionGood faith investor protection is the rule at 8 U.S.C. 1153(b)(5)(M) that keeps an EB-5 petition or conditional residence alive after USCIS terminates the regional center or debars the new commercial enterprise or job creating entity, provided the investor cures within 180 days of being notified and was not a knowing participant in the conduct behind it.
  • Threats to the national interestThreats to the national interest is subparagraph (N) of the EB-5 statute, which obliges the Secretary of Homeland Security to deny or revoke any EB-5 petition, application or benefit, and to end the resident status it produced, once the Secretary decides in discretion that approval would be contrary to the national interest for reasons relating to public safety or national security.

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