Securing the I-526 approval is the initial step in the EB-5 visa application process. Following this, the investor must take action to apply for a conditional green card.
For those applying from outside the United States, consular processing is essential. This involves filing the DS-260 form and scheduling an immigrant visa interview at the nearest U.S. embassy or consulate in the investor’s country of residence.
During a recent webinar hosted by EB5Investors.com, panelists Marjan Kasra from Lawmaks, Irina Rostova from EB-5 Support, and Kyle Walker from Green Card Fund shared critical insights on the significance of these interviews, which can significantly impact the success of an EB-5 application.
They emphasized that interview timelines differ by consulate, and thorough preparation is paramount—especially regarding the source of funds and specifics of the EB-5 project.
Here are key points to keep in mind for EB-5 investors to maximize their chances of success during the consular interview and successfully advance to the final stage—submitting the I-829 petition to remove conditions from their conditional green card after their project has created the required ten jobs.
What does the I-526 form approval really mean?
Marjan Kasra: Approval is one of the largest milestones in your EB-5 green card journey. What it signals is that the U.S. Citizenship and Immigration Services (USCIS) has already considered your Regional Center to be compliant with all their regulations. So, it reviews the business plan and makes sure that this regional center can create the ten required jobs or that they have already created these jobs. So, it signals that the RC is compliant, which is more important for you as an EB-5 investor. Basically, they’ve also looked at how you acquired your wealth, how you acquired your investment, and that they believe it was acquired legally and that you utilized legal methods to get it to the project. It’s a great milestone.
Essentially, you are qualified at that point to obtain your conditional green card. So, once this happens, we go on and look at the visa availability. If you are from one of those countries that have retrogression, namely, China and India, then it really depends on whether you filed pre-Reform and Integrity Act of 2022 (RIA) or post RIA, or with a regional center that’s in the rural center, rural geographical area, or in a targeted employment area (TEA). Essentially, USCIS will transfer your file to the National Visa Center (NVC), and the NVC will begin collecting additional documents from you, including form DS-260. We also provide NVC the entire packet that we sent to USCIS initially regarding your source of funds, because we want to make sure those documents make it to the embassy.
Once those documents are complete, they put you in a queue, or in line, to be scheduled at the U.S. embassy, where you are supposed to attend an interview.
What are the timelines for the consular interview?
Irina Rostova: Different consulates may schedule interviews at different times. In certain consulates, they have a month’s availability, while with others, you will have to wait four to five months. The challenging thing about obtaining an immigrant visa, unlike a non-immigrant visa, where you can often request an interview in different consulates and not necessarily in the country where you reside, is that you can only request an interview in the country where you reside. You are either a citizen or a permanent resident of that country. Sometimes, some clients are limited. For example, if the wait time is in Poland, it is six months. That’s what you’re going to have to wait unless you can qualify to move your case based on residency to another location. Another thing that sometimes took extra time, which, thankfully, USCIS has fixed once the case was approved, is that it has to be transferred to the NVC. That transfer should only take a couple of weeks. But for some years, those transfers would take up to a year. There were a lot of lawsuits, many filed a lot of complaints, and it seems like the USCIS has finally streamlined that process. In the majority of cases, we do see a pretty quick transfer between the USCIS and the NVC. But if you are stuck at that step, it is also advisable to discuss your case with the litigation attorney to see if you can try to move it forward.
Marjan Kasra: With countries that don’t have a U.S. Embassy, such as Iran and Russia, more of late, you are able to apply to any other US Embassy in any other country to which you have a valid visa, so you don’t necessarily need to be a resident of that country. So oftentimes our clients from Russia or Iran will travel. The Russians are getting appointments in Poland, and Iranians have designated embassies in Turkey, Armenia, and Abu Dhabi. So those are the countries that you can go to. But essentially, you can go to any other country as long as you have a valid visa. But, as Irina has pointed out, ideally, they want to see you go to the country where you are from or if you have a permanent residency, and so there are some exceptions where you could visit other embassies.
Unfortunately, they don’t publish actual data, so we wouldn’t know exactly how long it takes to go to the U.S. Embassy in London for an immigrant visa. The State Department does publish non-immigrant visa data. Unfortunately, like with the immigrant visa, we just have to go by our own experiences, and at conferences, I always ask my colleagues like, ‘How are things at the U.S. Embassy in London?’ Or, ‘how are things in China?’ Just as a rule of thumb, five to eight months seems to be fair game. Oftentimes, we’re able to secure them faster than that. If it goes beyond that, oftentimes, especially with Abu Dhabi and Ankara, Turkey, they are kind of notorious for being very slow. I believe they’re doing a much better job in India and China, but some countries are just slower, and what we may suggest is to file for a writ of mandamus, which is where we file an actual lawsuit, oftentimes in Washington, DC. If there’s no nexus between the investor and a given State, we always have to choose Washington, DC. The venue and that writ of mandamus basically force the State Department to proceed with scheduling the interview. We do have our way of trying to expedite these things prior to recommending a mandamus, though oftentimes if the investor has a family relative in the United States, we may approach the State Senator to see whether we could push the State Department to have the Embassy schedule that interview appointment. If there’s no nexus or connection between the investor and any given state, the only venue left is Washington, DC.
Does the country of birth affect interview scheduling timelines?
Marjan Kasra: Absolutely. You’re supposed to go to the country that you’re from, provided there’s a U.S. embassy in countries like Iran, where there’s no embassy. Then the designated embassies are Ankara, Abu Dhabi, and Armenia. With those three countries, because they’re so overwhelmed with their population, they kind of put Iranian cases on the back burner. So, unfortunately, we do see more of a delay with certain nationalities. That’s when we try to reach out to U.S. Senators and file lawsuits as needed.
What happens to applicants from Russia or Ukraine who must interview at a U.S. embassy or consulate?
Poland is the designated consulate for Russian nationals. Many Russian nationals have been able to obtain residency in other countries, and they’re going to those interviews. Things are moving along quite well, specifically in Poland, actually, because they had so many EB-5 cases transferred to them, and it happened during Covid. Post Covid, they also had so many cases transferred from Russia to Poland. They were not used to it, so they actually brought in who they considered to be an expert, and they were doing additional reviews and re-adjudicating all the source of funds documents. I was not very happy about that. I’ve written to them, and we argued that this is not consistent with the 2013 EB5 memo by USCIS. It caused, in my opinion, some delays. But I’m happy to say that for the vast majority of cases overall, Poland is one of the best consulates that I’ve worked with. They are very efficient. And for the vast majority of cases, they were able to move them along quite efficiently. Allow it for 6 to 12 months. The majority of applicants will get their interview scheduled within 6 to 12 months after the approval, and if you are from a country that has specific delays, just be in very good contact with your immigration attorney because half the battle is just being proactive, emailing the documents quickly, communicating with NVC.
Why is it important to prepare for the consular interview?
Marjan: If you get a consular processing officer that is somewhat overzealous, you should be prepared. Oftentimes, they question you about the source of funds. They want to make sure you know which project you’re going to. We make sure you remember what you did three to four years ago because, by the time you make it in front of a U.S. Embassy consular officer, especially if you filed pre-RIA, there could be 2-4 years past from the time that you first invested your funds. We try to make sure you understand exactly what transpired a few years back and that you will be prepared for any questions that may come up after your interview.
What should EB-5 investors know when going to the interview?
Irina Rostova: Over the years, I would say, over the last five years, we’ve seen EB-5 interviews go from a mere formality to very different levels of difficulty, and it vastly depends on the consulate where you’re going. Some consulates have an employee who is looking at an EB-5 petition for the 1st time. They’re not sure what to ask. And usually, those interviews actually go pretty smoothly. Then there are other countries where the officers believe themselves to be EB-5 experts, and they also believe it is fully in their discretion to review and re-adjudicate the entire petition. We’ve seen more stringent interviews in India and in China, where they see a volume of those cases. Sometimes, you will see a consular officer go deep into the source of funds and start asking questions.
All investors should know their source of funds. They should get the updates on the projects as of the date that they’re going to the interview, and they should also be able to respond to questions about their own additional income, and so on, so that they just don’t raise any red flags, because if a consular officer feels like there’s red flags, and they’re unclear about how this person is earning their money, they may flag the case and that can cause additional delays.
Marjan Kasra: Absolutely. Oftentimes, and this is something that we hear from these ex-consular officers, is that they’re not necessarily well trained when they start reviewing these things, so their training could be as short as 3 weeks before they start adjudicating cases at embassies. Oftentimes they just don’t have the experience, no clue about what the currency exchange rates are. They don’t understand why this property that was bought 10 years ago is now 10 times what it was back then because they just don’t have a clue about inflation in certain countries, so oftentimes it comes down to the experience or lack of experience of a consular officer. And this is why we want to make sure that our clients are pretty much over-prepared when they go in. Thankfully. I haven’t had any cases to go back to USCIS. But they do have full discretion. There’s this concept of consular non-reviewability on top of everything else.
Kyle Walker: As a regional center owner, we’ve never seen any investors be denied at this step. We don’t spend a lot of time talking about it because we are really focused on the regional center. Working with an experienced regional center really helps you. We will send full packages to immigration attorneys so they can help their clients prepare; project update reports that we’ve been providing to the investors, maybe interim economic studies that have happened along the way, really a full package so that an investor feels comfortable and can go into that interview very conversant on you know project details, even if they’ve never maybe been to the U.S. and seen the project firsthand.
What happens if the consular officer is not pleased with the answers?
Marjan Kasra: They could potentially flag your case and send it back to USCIS for re-adjudication, and oftentimes, they will consider that to be a valid concern, and it will cause several months, if not years, of delay. You would then have to file a motion to reopen if USCIS chooses to revoke that I-526 pre-approved. They could theoretically revoke it. Then it’s up to you and your lawyer to file a motion to reopen it and it just makes everything messy.
Irina Rostova: They don’t necessarily have the power to deny your petition. Your I-526 was already approved, but they can send it back to USCIS for re-adjudication, which is very frustrating. I’ve seen it happen a couple of times in my entire career, and it usually happened when the consular officer was not very experienced. They asked some questions related to the source of funds and maybe additional sources of funds, and got scared because when investors are talking about millions of dollars in this account, in this property. Sometimes, their experience is not much, and they flag the case and send it back to USCIS for review of fraud. I’ve personally had cases go through fraud reviews. They come clean, and they go back to the interview. But it does cause a delay of about a year or two. So we absolutely want to try to avoid that by being prepared, knowing your source of funds, and giving very clear responses.
On what grounds could a U.S. Embassy reject an EB-5 investor because of their regional center?
Marjan Kasra: At the embassy, if there is any kind of doubt as to the validity of the regional center, that could be one of the reasons that they could deny your case at the Embassy. So sometimes, if the regional center has lost its license, for whatever reason, that could be a reason why they would deny your case. It’s very important when you’re choosing a project to go with a project that is very conscientious of keeping compliant with USCIS regulations.
How soon after the interview approval must the EB-5 investor enter the U.S? Is there a time limitation?
Marjan: Assuming everything goes well, your passports will be stamped with what we call an I-551 stamp, which is essentially an immigrant visa stamp, and it can be used as your green card until the actual green card is issued for at least one year from the date that you enter United States. Once you enter the U.S., that stamp is activated, and it will be considered active as your green card for one whole year upon endorsement.
Marjan Kasra: It sounds arbitrary, but the length of time you have from the time that they stamp your passport to when you actually travel has to do with the validity of your medical examination. When you do your medical exams for an immigrant visa, they’re generally valid for 6 months only. If your interview happens, and then they stamp your visa, you have approximately five months or so to travel. Sometimes, it takes them longer to stamp your visa, or you may have less than 5 months, so it must be within that 6 months of validity. If they’re taking a bit longer, some people are placed in what we call administrative processing after the interview process. It may take a few weeks or a few months longer for them to actually stamp your passport, and should that happen, clients will have to redo their medical examination because otherwise, they don’t want to be pressured to travel within two weeks.
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