Under the Immigration Reform and Control Act of 1986 (IRCA) and the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), eligible immigrants can apply for conditional lawful permanent resident (CLPR) status through the EB-5 visa program based upon a qualified EB-5 investment. Once their application is approved, EB-5 investors are awarded conditional permanent resident status.
Conditional Permanent Resident Status Expiration
Once a foreign national’s permanent resident status is approved, the two-year CLPR period begins. Upon approving an immigrant’s EB-5 conditional permanent resident status, U.S. Citizenship and Immigration Services (USCIS) will issue a permanent resident card, commonly referred to as a green card. The green card shows the approval and expiration dates of an immigrant’s conditional resident status.
Two years after approval, EB-5 conditional permanent resident status expires automatically. A foreign national whose CLPR status has expired may face deportation.
I-829 Petition to Remove Conditions on Immigration Status
To remove the conditions on permanent resident status, an EB-5 investor must file an I-829 petition with USCIS within 90 days of the expiration of his or her CLPR status. Once USCIS approves the I-829 petition, the applicant’s residency status is no longer conditional. Moreover, the two years of residency during the CLPR period are included when determining length of residency for naturalization.
If, however, an EB-5 investor fails to submit an I-829 petition within 90 days of the expiration of his or her CLPR status, permanent resident status will be terminated, and the U.S. Department of Homeland Security will issue a Notice to Appear (NTA) in removal proceedings. The United States will deport a foreign national and his or her dependents unless he or she can demonstrate that extenuating circumstances prevented the timely submission of the I-829 petition.
Primary Challenge to Removing Conditions on Immigration Status
Properly preparing and submitting the I-829 petition represents the primary challenge to removing conditions from an EB-5 investor’s permanent resident status.
To remove the conditions on his or her immigration status, an EB-5 investor must prove to USCIS that the original requirements of the approved I-526 petition have been met. Particularly, this involves clearly demonstrating that the required investment was made—either $1,800,000 or $900,000 if the investment was in a targeted employment area (TEA)—and that this investment created 10 full-time jobs. Thus, having a properly prepared I-829 petition is essential.
The I-829 petition must demonstrate to USCIS that the foreign national made an investment in a U.S. commercial enterprise in accordance with the EB-5 visa program. The contents of an I-829 petition will need to include proof that the EB-5 investment generated the necessary employment (e.g., I-9s, W-2s, and payroll records) and the investment’s business license, property lease, financial records, and so forth.
Every year, a few investors choose to file their I-526 petition on their own—without the aid of an immigration attorney or firm that specializes in EB-5 investments. For such investors, it is vital that they fully understand all the requirements of the EB-5 visa program and the conditions that apply to their immigration status.
If USCIS determines that an investment does not fulfill all the requirements set forth in the investor’s approved I-526 petition, the I-829 petition to remove the conditions on the investor’s permanent resident status will be denied—and the investor and his or her family may face deportation.
Each EB-5 Investor’s Situation is Unique
Each EB-5 investor’s situation is unique, and so each I-526 petition is unique. Consequently, the requirements that must be fulfilled and demonstrated in an I-829 petition are specific to each investor.
For instance, whether or not the commercial enterprise is located within a TEA determines how much capital must be invested by an EB-5 investor. Also, the means by which the investment was made—either a direct investment or an investment facilitated by an approved regional center—determines the kinds of jobs that can be counted toward the job creation requirement.
Because most foreign nationals who consider an EB-5 investment do so specifically to obtain permanent resident status, ensuring that the process is handled correctly from start to finish is essential. Therefore, we recommend that anyone considering an EB-5 investment consult with a professional company to ensure all the requirements of the EB-5 visa program are met.