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I-829 Petitions to Remove Conditions on Permanent Residence for an EB-5 investor

 
Background
An immigrant investor’s permanent resident status is conditional. To obtain unconditional status, a petition to remove conditions must be in a timely way. Proof of job creation is essential for this purpose. Failure to remove the conditions will result in automatic termination of the conditional resident’s status and possible commencement of removal proceedings.


Procedure
Form I-829, Petition to Remove Conditions, must be filed within the 90-day period immediately prior to expiration of two-year conditional residence period. However, a late filing may be considered if for “good cause and extenuating circumstances.”

Only the principal investor is required to file the I-829 petition, and the spouse and dependent children are automatically included. Children who have reached the age of 21 or have married during the two-year period of conditional status do not lose the benefits of their relationship with the principal. Even a former spouse who divorced during the conditional period is protected by the principal’s petition or by a separate petition.

Upon the filing of the I-829 petition, USCIS should issue a receipt notice that provides documentary proof of a one-year extension of conditional residence status, which also serves as a travel document. This ensures that the conditional resident and his family may remain in status while the I-829 is adjudicated.


Evidence Required to Remove Conditions
USCIS has imposed restrictive standards on adjudication of I-829 petitions. Causes for the denied petition for might range from being unable to prove that the commercial enterprise has adhered strictly to its original business plan; that the commercial enterprise expended all of the business’s capital; that that the business has hired enough employees; or that the employees are lawful citizens and immigrants.

A successful case for removal of conditions requires evidence that: (1) the petitioner has invested or is actively in the process of investing the requisite capital; (2) the investment and commercial enterprise have been sustained throughout the period of the residence; and (3) the petitioner created or can be expected to create within reasonable period of time ten full-time jobs for qualifying employees.

  1. The Investment Level Requirement
    • The requisite amount of capital is determined in the adjudication of the initial I-526 petition and it should not be changed in the I-829 petition. For a commercial enterprise located in a targeted employment area, the fact that population data or unemployment rates may have changed during the two-year conditional period is immaterial.
    • Although generally it is true that lawful source of funds should not be a factor in the adjudication of I-829, USCIS can raise the issue of illegal source of investment funds and support this charge with its findings. If USCIS appropriately raises a question about the investor’s source of funds, the petitioner must present the appropriate evidence to rebut the charge.
    • If the petitioner has not yet completed the investment of capital at the time the I-829 petition is filed, the supporting evidence should include proof that the investor can promptly complete the investment. The evidence should indicate the specific timing of the additional investment, the intention to complete the investment, and the petitioner’s financial ability to complete the investment.
       
  2. The Sustained Investment Requirement
    • In order to meet this requirement, the petitioner must show that he or she “continuously maintained” the requisite investment. While this concept is liberally interpreted by USCIS, it should be construed in the context of the desired lasting impacts on the U.S. economy. The investor may show both the present and future positive economic impacts that flow from his or her investment.
    • Even with the showing of a good faith investment of the required capital, and hiring of the required number of employees during the conditional period, USCIS is likely to deny the I-829 if the business has failed prior to its filing.
       
  3. The Job Creation Requirement
    • There is no regulation that requires any specific type of evidence beyond “photocopies of relevant tax records, Form I-9, or other similar documents” for proving worker qualification for EB-5 job creation purposes. In recent adjudications of petitions for removal of conditions, however, USCIS has insisted on proof of the immigration status of the individual employee and has not accepted standard documentation of the employee’s eligibility for employment.
    • If there are not at least 10 employment positions at the end of the conditional residence period, the petition can still be approved by showing that the required job creation will occur within a reasonable period of time. The petitioner may include job offer letters, prospective contract engagements, business plans, and other appropriate documentation concerning future business activities.
    • Congress effectively ingrained the principle that standard EB-5 petitions and regional center affiliated EB-5 petitions are to be adjudicated based on a different set of evidentiary rules. For investment in a regional center, the evidence of job creation can be based on expert economic analysis and must not include actual payroll records and I-9 forms.

 

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