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Form I-829 Best Practices for EB-5 Investors

The I-829 petition is the last step of the EB-5 visa process to obtain a United States Green Card. It proves to United States Citizenship and Immigration Services (USCIS) that an investor has fulfilled the plan they submitted in their initial I-526 or I-526E petition.

Specifically, the I-829 petition proves that the immigrant investor successfully met all EB-5 program requirements. Once the petition is approved, the investor’s conditional residency restriction is removed and the investor, their spouse, and their unmarried children under the age of 21 can live in the United States permanently.

The best practices discussed in this article can be used as a starting point for applicants who are ready to file Form I-829 to apply for the removal of conditions on their permanent resident status.

1. File Form I-829 at the Right Time

From a timing standpoint, the I-829 petition should be filed within 90 days before the end of the two-year conditional permanent resident status period. This expiration date is written on the EB-5 investor’s conditional Green Card.

It is critical that the EB-5 investor is aware of this date because if their I-829 application is not filed within this timeframe, complications can arise that may jeopardize their ability to obtain permanent residency. The investor’s conditional residency will be extended while the I-829 petition is reviewed by USCIS.

Completing the I-829 petition accurately and on time will increase the investor’s likelihood of obtaining U.S. permanent residency through the EB-5 program.

2. Understand the Requirements for the I-829 Petition

To successfully file an I-829 petition, the applicant must present several supporting documents to USCIS as evidence that they have successfully met all requirements of the EB-5 program and qualify for the removal of conditions on their permanent resident status.

The instructions for Form I-829 provided on the USCIS website include a section outlining the documentation that applicants must submit. The main categories are:

  1. Evidence of conditional permanent resident status, which may include a copy of the EB-5 investor’s conditional Green Card and any other relevant immigration documents.
  2. Evidence related to the investor’s commercial enterprise, investments, and job creation (e.g., financial statements, tax returns, invoices, contracts, etc.).
  3. Evidence for petitioners filing as a former spouse or as a spouse or child whose EB-5 investor spouse or parent has died.
  4. Evidence of any criminal history.

Each investor’s circumstances are unique, so there is no specific, exhaustive list of required documents. However, the guidelines in the sections that follow can provide an overview of the types of documents to include. Some of the documentation will be provided by the EB-5 investor and some others by their regional center, if applicable.

Tip: Collaborate with Regional Centers and Developers

  • An I-829 petition is more likely to be successful if an investor collaborates with:
  • The EB-5 project sponsors
  • The project developer
  • Their legal counsel
  • If applicable, the regional center they invested through

3. Submit Key EB-5 Project Metrics

Both developers and regional centers must accurately track key project metrics to help ensure their EB-5 investors’ petitions are successful.

Among the metrics that must be tracked, the inputs used in the original economic model are critical. These inputs include:

  • EB-5 project financial metrics
  • EB-5 investment deployment
  • The number of jobs—both direct and indirect—created through the EB-5 project

EB-5 Project Financial Metrics

EB-5 investors can provide bank statements, actual receipts, and proof of expenditures, including invoices and other proof of payment in the economic report to document hard and soft costs, operational revenue numbers, and other financial data to satisfy EB-5 program requirements. Developers must begin tracking this as soon as construction spending begins.

EB-5 Investment Deployment

Per USCIS requirements, the EB-5 investor’s required capital must be invested in the new commercial enterprise (NCE) specifically as part of the EB-5 program. To prove this, USCIS will use W-2 forms, I-9 information, bank statements, and (preferably audited) financial statements.

Additionally, funds must be deployed in the project at the time of the EB-5 investor’s consular interview, if applicable.

Number of Jobs Created through the EB-5 Project

Applicants must show that their EB-5 investment has met EB-5 program job creation requirements, and has been maintained throughout the job creation period. IRS Schedule K-1 (Form 1065) can provide sufficient evidence to prove to USCIS that this has taken place.

Additional documentation to support job creation requirements includes payroll records and other tax documents.

4. Prepare the Required Individual Investor Documentation

Investors must provide proof of their lawful conditional permanent resident status with their application. To do so, they must submit a copy of both the front and back of their Green Card.

The investor must also prove that they have met specific requirements of the EB-5 program, including job creation and NCE formation. While some of the required documentation will be provided by the regional center and/or developer, investors who have made direct investments will have to provide all of the required documentation.

Proof of NCE

To prove that a new commercial enterprise was established, the EB-5 investor must provide specific documentation with their Form I-829. The investor must also clearly demonstrate that the enterprise operated throughout the full duration of their two-year conditional residence period. The investor may submit:

  • State and federal tax returns
  • Quarterly tax statements
  • Bank statements
  • Contracts
  • Licenses and permits
  • Receipts and invoices

Depending on the NCE, additional documentation may be required to prove its establishment and continued operation throughout the designated time period. These documents may include business plans, organizational documents, or other records.

Proof of Investment

When filing an I-829 petition, the investor must also prove that the required capital was lawfully invested as part of the EB-5 program. This can be proven through the submission of items such as:

  • Bank statements
  • Audited financial statements
  • Escrow agreements, if applicable
  • Subscription agreements between the EB-5 investor and the NCE
  • Wire transfer records
  • Other documentation that demonstrates compliance with EB-5 program requirements, such as contracts, receipts, or other records related to the investment

Proof of Job Creation

As part of their I-829 petition, it is crucial that the EB-5 investor provide sufficient evidence that their capital investment has resulted in the creation of 10 full-time, EB-5 program-eligible jobs. Supporting documentation to prove this may include payroll records, personnel files, W-2 forms, I-9 forms, and other tax documents.

Criminal Record

If an EB-5 program applicant has a criminal history, they need to provide documentation relating to it as part of their I-829 petition. This typically includes:

  • Court records
  • Law enforcement statements
  • Any records of arrest, sentencing, probation, or parole
  • Copies of spouse’s and/or child(ren)’s Green Cards

5. Know What to Expect When Filing Form I-829

USCIS lists the current filing address on its Form I-829 page, under the “Where to File” dropdown menu. USCIS processing times for I-829 petitions, as well as a wide range of other forms, are listed on the Check Case Processing Times page.

USCIS may sometimes request additional information that may be necessary to help adjudicate the I-829 petition. In some circumstances, USCIS may also request an in-office interview with the EB-5 program applicant. These additional requests can be avoided by submitting a complete application supported by accurate tracking from the beginning.

When an I-829 is approved, the applicant’s conditional permanent resident status is replaced by lawful permanent resident status. Once this occurs, the investor will receive a new Green Card reflecting the change in status.

What Happens to an EB-5 Investor’s Status After Filing the I-829 Petition?

Once an application is filed, USCIS will provide a receipt notice to each of the parties under review (the main investor as well as their spouse and dependents, if applicable). EB-5 investors can use this receipt to track their application status. This receipt will serve as confirmation that their conditional permanent resident card has been extended while USCIS reviews the petition, while also providing them with work and travel authorization.

After filing the I-829 petition, USCIS will send a written notification of the date, time, and location of the applicant’s biometrics (fingerprinting) appointment at a local Application Support Center (ASC). The applicant must be present at the scheduled time; otherwise, the application may be denied. It is possible to reschedule an appointment, but USCIS requires specific steps to do so. Additional instructions related to biometric services appointments are available on the USCIS website.

Understand I-829 Petition Options for Failed EB-5 Projects

If an EB-5 project fails, the investor can still be granted permanent resident status through a successful I-829 petition filing. The success of the filing will depend on the EB-5 investor’s current immigration status and the degree to which the original business plan was successful.

Investors who have already started the period of conditional residence can still receive Form I-829 approval. In these cases, the investor must prove two things: that the original EB-5 investment can be sustained and that this investment created—or will create—the full-time jobs required by the EB-5 program within a reasonable timeframe, even if the project ultimately failed.

It is not required to show USCIS that the established business was successful. If the requisite jobs are created and other EB-5 program requirements (including the investment amount and investment maintenance) are satisfied, the investor can still be granted an unconditional Green Card.

If the original project failed before the satisfaction of all program requirements, capital redeployment is a viable option for EB-5 investors. This involves reinvesting the EB-5 capital into an alternative NCE or EB-5 program-compliant project.

Work with EB5AN to Gain Permanent Residency in the U.S.

Ultimately, every EB-5 investor’s case is unique, and precise documentation required with an individual’s Form I-829 will vary beyond what is listed above, in addition to other factors impacting the success of their EB-5 application.

It is recommended that EB-5 investors work with experienced immigration attorneys and EB-5 program experts to determine the exact steps they will need to take to ensure a smooth approval of their unconditional permanent resident status in the United States.

EB5AN has helped more than 2,300 families from 60 countries relocate to the United States as lawful permanent residents. Our expert team has more than a decade of experience, and offers clients first-rate, low-risk EB-5 regional center projects with 100% USCIS project approval rate to date.

To learn more about Form I-829 best practices, book a free call with our EB-5 team today.