In recent months, U.S. Citizenship and Immigration Services (USCIS) has reportedly issued denials of EB-5 immigrant investor petitions (Form I-526E) where investors filed after making only an initial installment toward their qualifying EB-5 investment, but later missed the deadline for subsequent installments into the New Commercial Enterprise (NCE). These denials highlight a fundamental legal principle governing all EB-5 filings: an EB-5 petition must be “approvable when filed.”

The Legal Standard: ‘Approvable When Filed’

Under the Immigration and Nationality Act (INA) and established precedent, an EB-5 petition can only be approved if, at the time of filing, the investor has either:

• Already invested the full amount of qualifying capital into the NCE; or
• Is actively in the process of investing, meaning that the capital is irrevocably committed and available for immediate use in the job-creating enterprise.

This principle is outlined further in the USCIS Policy Manual, Volume 6, Part G, Chapter 2(A), which provides that an EB-5 petition must be supported by evidence showing that the investor has “invested or is actively in the process of investing the required amount of capital.”

Furthermore, Volume 6, Part G, Chapter 2(B) clarifies that funds merely in the investor’s possession or subject to future contingencies do not satisfy the investment requirement. This standard was reaffirmed in Matter of Izummi, 22 I&N Dec. 169 (Assoc. Comm’r 1998), where USCIS held that an investor must have placed the required amount of capital “at risk for the purpose of generating a return” at the time the petition is filed. A petition cannot be approved based on “future events” or “future investment commitments.”

Installment-Based Investments: Compliance Risk if Delayed

Some NCE’s allow investors to contribute their capital in installments under the terms of the subscription or operating agreement. This might be done to accommodate an investor who may need to liquidate an asset to fund their capital, or who needs additional time to transfer funds to the NCE’s account in the United States. While installment structures may provide flexibility, they also introduce risk if the investor delays second or subsequent installments. Where the full qualifying investment amount is not yet funded or irrevocably committed at the time of filing, or where the investor later misses an installment deadline the NCE sets, USCIS may determine that the petition was not approvable when filed, resulting in denial.

Practical Considerations for EB-5 Investors

To help ensure EB-5 petitions remain compliant and approvable, investors should consider the following steps:

1. Timely Fund All Installments – Adhere strictly to the NCE’s investment schedule and ensure the full EB-5 investment amount is transferred within the agreed timeframe.
2. Document the Source of Funds for Each Installment – Prepare and maintain comprehensive documentation tracing the lawful source and path of funds for every installment, including wire transfers, sale proceeds, or personal savings.
3. Submit Updated Evidence to USCIS – Once all installments are completed, submit proof proactively via an interfiling (supplemental filing) or in response to a Request for Evidence. This should include evidence of transfer of capital and the related source of funds documentation.
4. Coordinate with Counsel and the NCE – Maintain consistent communication with both your immigration attorney and the NCE to ensure that investment deadlines, fund transfers, and documentation align with USCIS approvability standards.

Conclusion

The EB-5 program remains a vital path to permanent residence for investors worldwide, but it operates under a strict legal standard: a petition must be approvable when filed. Partial or contingent investments—even if later completed—cannot cure a deficient initial filing. Ensuring timely funding of all installments and maintaining comprehensive source-of-funds documentation may protect EB-5 investors’ eligibility and strengthen their cases before USCIS. For investors navigating installment-based investments or responding to USCIS inquiries, early action and proactive compliance may be key to success.