Learning from positive AAO appeal outcomes

What happens after USCIS denies an EB-5 petition? Is there any chance to fight back, show that USCIS made a mistake, provide more input, and get the case reconsidered?

Petitioners are not allowed to take denials straight to court (since RIA), but the Administrative Appeals Office provides a chance to appeal denials for I-526, I-526E, I-956, and I-956F. The AAO is a branch of USCIS, and appeal used to look like a hopeless cause. From 2005 until a couple years ago, AAO agreed with nearly every denial and dismissed over 95% of appeals. But this has changed. Of the 155 EB-5 AAO decisions published so far for 2025 and 2026, nearly a third represent cases that AAO remanded back for another review and a new decision. AAO even sustained a few appeals.  The AAO process has also become relatively timely, with 88% of recent I-526 appeal decisions coming within the target 0-180-day processing time.

What do I learn from recent (relative) success with AAO appeals? What arguments work to convince the AAO to give the petition another chance at review? This article summarizes common features in recent remand decisions, including evidence gaps, substantive analysis, and new information. I also highlight some common pitfalls for appeals.

Evidence Gaps

The person writing recent EB-5 decisions for AAO is annoyed by evidence gaps, and will remand the denial if USCIS relies on information outside the record. AAO does not like USCIS denying cases based on information that USCIS found independently online (such as on Google Maps), unless USCIS reproduces this information in the record and also gives the petitioner a chance to respond to any apparently derogatory details. MAR052026_01B7203, for example, explains the issue.

In FOD’s initial denial, it relied, at least in part, on materials outside of the record of proceeding, obtained through “open-source searches.” FOD claimed that these materials demonstrated a lack of construction progress at the project site. Our remand of this matter instructed FOD to “identify and incorporate any documents that may have been inadvertently omitted from the record” prior to issuing a new decision. Additionally, we stated that if FOD could not “supplement the record with the missing materials, and if the decision will be based in part on materials not submitted by the Petitioner,” that FOD “should issue a new NOID [notice of intent to deny the petition], granting the Petitioner a reasonable opportunity to respond before issuing a new decision.”

On remand, FOD considered the Petitioner’s appellate arguments as well as evidence submitted on appeal and concluded that the record still did not establish her eligibility. In its decision, FOD again cited to information outside the record. Rather than supplementing the record with this information, FOD provided in its decision footnotes with the uniform resource locators (URLs), also known as web addresses, for the results of its internet searches. Although the decision was based in part on materials not submitted by the Petitioner, FOD did not issue a NOID prior to issuing this decision.

…FOD bears the responsibility of ensuring that the record is complete and contains all evidence submitted by the Petitioner and any other evidence considered by FOD in reaching its decision. See 8 C.F.R. § 103.2(b)(l); see also Matter of Gibson, 16 I&N Dec. 58, 59 (BIA 1976). Providing the web address for the results of an open-source search is insufficient and is not equivalent to incorporating a document into the record.

Substantive Analysis

The person writing recent EB-5 decisions for AAO dislikes sloppily-worded denials, and will remand the matter back to USCIS if the original decision lacks clarity and substance. AAO remanded FEB212025_02B7203 because the denial did not give “sufficiently detailed and substantive analysis of the evidence to explain the specific reasons for denial, as required by 8 C.F.R. § 103.3(a)(l)(i).” In MAR042026_02B7203, AAO agreed with USCIS that the NCE looked shady, but still remanded the matter: “because FOD did not clearly articulate the relevant facts and link them to eligibility, it did not allow us an opportunity for meaningful appellate review. See 8 C.F.R. § 103.3(a)(l)(i); see also Matter of M-P-, 20 I&N Dec. 786 (BIA 1994) (finding that a decision must fully explain the reasons for denying a motion to allow the respondent a meaningful opportunity to challenge the determination on appeal).”

New information on appeal

It can help to present new information when making an appeal. In multiple decisions in 2025/2026, AAO withdrew the denial decision and remanded the matter so that USCIS could consider additional documentation.  

For example, in MAY012025_01B7203  AAO told USCIS to reconsider a bridge financing denial, with reference to an audit report and payroll records provided for the first time on appeal. “Upon remand, FOD should consider evidence concerning the completion date of project construction, and the associated job creation, that FOD has not had an opportunity to review. See 8 C.F.R. § 204.6(g)(l), (i)(4).”

In JAN292025_03B7203, AAO asked USCIS to review new evidence for a Vietnamese  investor who used a currency exchanger in the path of funds.

On appeal, the Petitioner submits additional evidence and contends that she has demonstrated that her funds were lawfully sourced, provided to a licensed money exchanger, and then transferred to the NCE’s escrow account. Upon de novo review, we are remanding this case for the Chief to consider the additional evidence submitted on appeal and added to the record.

In the sustained appeals (for example MAR182025_01B7203), the federal court and AAO were won over by a new expert opinion letter that helped validate the claimed jobs ratio.

There are limits to presenting new information for the first time on appeal.  The new material will not help if it is belated, and will hurt if it contradicts or represents a material change from information previously provided.

In the JUL242025_06B7203  case, USCIS issued an RFE to request bank statements but the Petitioner “initially refused to provide these bank statements invoking personal privacy.” AAO said that “We therefore decline to accept the Petitioner’s bank statements on appeal. See Matter of Soriano, 19 I&N Dec. 764, 766 (BIA 1988) (refusing to consider evidence on appeal where a petitioner received notice of the required evidence and a reasonable opportunity to provide it before a petition’s denial).” AAO also references the problem that “the Petitioner introduces new evidence on appeal that contradicts the information initially claimed.”

And “material change” is a major issue to navigate. The petitioner in JAN162025_01B7203 made the mistake of replacing a deficient business plan with a stronger but materially-different business plan.  

In short, the record shows that after the Chief issued the NOID, notifying the Petitioner of the deficiencies of his initial filing -specifically, as relating to the credibility and comprehensiveness of the first business plan, and the viability of the ‘manufacturing plant’ project-the Petitioner submitted the second business plan. The second business plan changes the NCE’s business model and focus, planned use of investment, as well as anticipated job creation. These changes have a natural tendency to influence the eligibility decision because they attempt to cure apparent deficiencies and to show the viability of the NCE’s operation; thus, these changes constitute impermissible material changes to the Petitioner’s petition.

Presenting new information to USCIS while avoiding “material change” and discrepancies is an art and a science, requiring considerable care and experience. I study AAO decisions partly to help meet this challenge. My business plan writing and consulting services include support for RFE and NOID responses and AAO appeals. I’m proud of the success I have had in this area.

Fatal and Non-Fatal Derogatory Information

Recent decisions show that AAO does not agree with USCIS that project litigation necessarily justifies investor petition denial. For example in MAR232026_02B7203:

FOD discussed bankruptcy lawsuits, as well as complaints filed by the SEC and Federal Bureau of Investigations against the attorney of the record and sponsors, alleging fraud and other illegal activities such as misappropriation of investment from the NCE. But there is no indication that these cases have been resolved by the courts and the litigations are ongoing. … We acknowledge we do not give substantial weight to arrest reports, criminal complaints, and charging documents that did not lead to a conviction. See Matter of Arreguin De Rodriguez, 21 I&N Dec. 38, 42 (BIA 1995).

On the other hand, national security “concerns” are apparently fatal in themselves, without needing convictions or much evidence. A cluster of 2025 decisions (for example, JUL212025_04B7203) dismiss appeals by investors in a casino project in the Commonwealth of the Northern Mariana Islands. These investors had I-526 approved but then later revoked over suspicion that China might be “using casinos to exert coercive economic and political influence in the region” as part of a wicked plot to “expand its coercive and subversive malign influence activities to weaken the United States internally and globally.” Sigh. A commission report named the casino project as having “potential conflicts with the Department of Defense’s operational plans on the island.” And the casino investors suffered, no matter that they invested before the national security suspicions and before the EB-5 law that called for national security revocations.

Technicalities

Arguments about technicalities and clerical errors sometimes work, but it depends on context. In JUN162025_01B7203, a paralegal accidentally put the wrong petitioner’s signature page in the I-526, then filed a correction. AAO agreed that petitioner signature is a material matter, impossible to fix after filing even if it were just a clerical error. “The Petitioner has not offered legal authority to support the proposition that ‘an [alleged] inadvertent clerical error’ could excuse a deficient signature.” But AAO does demand that technical problems have a bearing on eligibility, to be the basis for denial. In MAR242026_01B7203, AAO withdrew a USCIS decision to deny an I-526 for (in part) leaving inapplicable form fields blank instead of filling them out with “N/A.”

We acknowledge that the Form I-526 must be filed in accordance with the form instructions. See 8 C.F.R. § 103.2 and §204.6. However, the Petitioner’s failure to respond “NIA” to some questions on the form or the omission of his signature, printed or typed name, and date on the top of additional sheets of paper filed with the petition does not necessarily show that the Petitioner has not met eligibility for the requested benefit at the time of filing under 8 C.F.R. § 103.2(b)(1) or any other regulation. FOD’s decision did not identify any information missing from the form which pertains to the Petitioner’s eligibility for classification as an immigrant investor.

Arguments that never work

From analyzing the hundreds of AAO decisions published since 2005, I’ve noted a few appeal arguments that have never worked: deference to prior decisions, retroactive application of new policies, and ultra vires evidence requests. I also note that multiple appeals involving one project can expect identical outcomes. Once AAO dismisses one project-related denial appeal, AAO goes on to use the same language to dismiss other appeals for investors in the same project, seemingly regardless of their specific arguments. Before trying an appeal, consider searching to see if the subject project already appears in a published decision.

Guidance through case decisions

AAO decisions are not precedent decisions, but interesting as a source of published USCIS thinking and practical application for topics with limited official policy and guidance. The current crop of AAO decisions provide a trove of new analysis on issues including material change, bridge financing, at-risk investment, partial and in-progress investment, employment terms and duration, and Subsection M Good Faith Investor protections. Recent AAO decisions go deeper into analysis around path of funds, currency exchangers, and informal value transfers. My brain is a living RAG library of reliable sources that you’re welcome to query, if you’d like to email suzanne@lucidtext.com or book a consultation with a question “What has USCIS said about X?” (whether in law, policy, regulations, AAO decisions, stakeholder meetings, website Q&A, etc). So far, I find that I can do better than AI plus the open internet with nuanced EB-5 questions, though AI is catching up. Otherwise, I use my research to inform my work preparing business plans and helping to guide clients around practical challenges with immigrant investment.