EB5 Permanent Residence
After your participation in EB5 is approved, you will enjoy conditional permanent residence status for two years, during which time you must complete and maintain EB5 investor visa program requirements, which include maintaining your investment and 10 jobs for US workers. These guidelines are depicted by the Immigration Reform and Control Act of 1986 (IRCA), and the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRAIRA).
Obtaining EB5 Permanent Residence: Removing Conditions from EB5 Green Card
Removing conditions from your EB5 green card can be a complicated and difficult process. The guidelines USCIS uses to determine whether you have fulfilled your requirements are complex, sometimes subjective, and not always consistent or easy to understand. They have also undergone many changes throughout the history of the EB5 investor visa program. An experienced immigration attorney can minimize your risk of losing your EB5 green card during this process.
To remove the conditions from your EB5 green card and obtain permanent residence status, you must file Form I-829 with USCIS a maximum of 90 days before the two-year anniversary of your I-526 petition approval. That is 21 to 24 months after you and your derivatives receive conditional permanent residence status. If you fail to file this form in time, you risk deportation, and you will not receive a green card through the EB5 permanent residence program.
If your I-829 petition is approved, the conditions of your EB5 green card and the green cards of your derivatives are likely to be removed. Derivatives are eligible for non-conditional green cards through the EB5 permanent residence program even if children have turned 21 or gotten married since you filed the I-526 petition, or if you have since divorced your spouse. Your immigration attorney will help you submit Form I-829 with all required evidence to ensure your derivatives are covered under the petition.
Work with your immigration attorney throughout your time of conditional permanent residence to ensure you obtain permanent residence status without setbacks. Keep in mind that the time you spend with conditional permanent residence status can count towards helping you become a naturalized citizen.
USCIS evaluates three factors when determining whether you are eligible to have the conditions removed from your EB5 green card:
- Whether you met your employment quota with your EB5 investment.
- Whether you have invested or are in the process of investing the required capital ($500,000 in a TEA or one million dollars outside of a TEA). USCIS guidelines regarding whether you are “in the process” of making an EB5 investment are complex, and hinge on whether USCIS considers the portion of the investment you have already made to be at risk. Your EB5 investment must also be irrevocably committed, which is another requirement for at risk capital. The guidance of your immigration lawyer is essential in obtaining a permanent EB5 green card if you have yet to invest the full required amount.
- The validity, completeness, and presence of all evidence with the I-829 petition, submitted with the help of your immigration lawyer, which allows you to obtain permanent residence.
Even if you meet all requirements, the use of your capital may jeopardize your ability to have the conditions removed from your EB5 green card. If you invested the required amount but the regional center or business you selected has not placed the funds at risk, or begun using the capital to create jobs, USCIS might deny your EB5 I-829 petition.
You have several options regarding when you will undergo USCIS evaluation to determine whether you have met these criteria, and can obtain permanent residence status. For example, you may choose to be evaluated when you file Form I-829, or six months after filing this form. Your immigration lawyer will help you choose the best option to ensure that the conditions are removed from your EB5 green card.
You may receive a Request for Further Evidence (RFE) after submitting EB5 Form I-829. This is a request for additional information before USCIS removes the conditions from your EB5 green card. An RFE may require that you submit additional documentation, or undergo an interview, for which your immigration attorney will help you prepare.
Pending EB5 Form I-829
While Form I-829 is pending, your conditional permanent residence status is extended, and you maintain all privileges you enjoyed previously. For example, you are permitted to travel during this time. However, complications frequently ensue with the visas of those with conditional permanent residence status who are waiting for conditions to be removed.
You will require the help of your immigration lawyer to navigate potential misunderstandings, as some government offices may not be aware that your EB5 conditional permanent residence status is extended while Form I-829 is pending.
Complications are especially likely to occur during this time regarding the immigration status of your derivates. Your immigration lawyer may decide to draw up documents for you and your family to carry, citing the 2005 memorandum that extends privileges accompanying your conditional permanent residence status while you petition for a non-conditional EB5 green card.
Denial of EB5 Form I-829
If you fail to meet EB5 permanent residence program requirements, you risk deportation and the loss of your EB5 green card. This process is called termination of status. Some common factors that may cause you to be rejected from the EB5 investor visa program include:
- You failed to establish or invest in a commercial project.
- You did not maintain the project as a commercial enterprise, and the funds you invested did not remain at risk and did not continue to generate capital and provide jobs for the two-year period required by the EB5 green card program.
- USCIS discovered that you obtained funds illegally and used these for the EB5 investor visa program.
- USCIS deduced that you invested solely to obtain a green card illegally.
- You failed to attend any visa-related interviews without justifiable cause.
- You failed to file a petition to remove the conditions from your EB5 green card within 90 days before the end of your two-year EB5 investment. An immigration lawyer can help ensure you file these complicated forms correctly and on time. If you do file this petition late, a skilled immigration attorney can help you present a legitimate reason for late filing to USCIS to prevent your deportation.
- USCIS discovers false information in your I-526 petition for an EB5 green card; therein making you ineligible to obtain permanent residence status.
- Your status can also be terminated if USCIS determines you failed to meet employment requirements in any way. While this provision is dangerously broad and open to subjective interpretation, there are no recorded instances of USCIS citing this provision when terminating the status of an EB5 investor.
There are many additional reasons for the denial of your non-conditional green card after the two year EB5 investment period. If you have family members waiting to obtain a non-conditional green card, they will also lose their status if at any point USCIS determines that you have failed to complete any EB5 investor visa program requirements.
If the government finds fault with your investment in any area, you will be notified. Your immigration attorney will assist you in preparing evidence to refute USCIS’ denial of your non-conditional EB5 green card. You can’t appeal the denial of your EB-5 I-829 petition. However, you can ask that USCIS review the decision. A skillful immigration lawyer may be able to change the department’s mind about denying your permanent EB5 green card.
In some circumstances your participation in the EB5 investor visa program may be prohibited, even if you request that USCIS review the decision. However,, you may be permitted to file a new I-526 petition, and essentially start the process over again. Either scenario will result in significant expense and inconvenience.
If you failed to provide a sufficient number of jobs with your EB5 investment, or if you have not invested adequate funds, USCIS may grant you an additional two years of conditional permanent residence to correct these areas. In this situation, you may combine your previous investment with additional capital you invest in the same commercial enterprise to reach $500,000 or one million dollars. 90 days before the end of your two-year extension, you must file Form I-829 again and repeat all other steps required to remove conditions from your permanent EB5 green card. The guidance of your immigration lawyer is essential during this process to ensure that you meet all government requirements, and do not undergo termination of status and lose your EB5 investor visa altogether.
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