What Is an I-829 Petition?
The I-829 petition is viewed as the last step of the EB-5 visa process. It is designed to prove to the United States Citizenship and Immigration Services (USCIS) that the plan put forth in the I-526 petition has progressed in a positive fashion and the EB-5 program requirements have been met.
The I-829 petition proves that the immigrant investor successfully met all USCIS requirements. Once the petition is approved, the investor’s conditional residency restriction is removed and that investor, their spouse, and their unmarried children under the age of 21 can live in the United States permanently.
From a timing standpoint, the I-829 petition can be filed from 90 days before the end of the two-year conditional permanent status period. An investor must be keenly aware of the conditional status expiration date that is noted on the conditional green card they received at the outset of the EB-5 process. The deadline set forth to file the I-829 application will depend on the timeframe outlined on the conditional green card.
The investor’s conditional residency will be extended while the I-829 petition is under review by USCIS. The application must be filed within 21 to 24 months of the investor’s two-year conditional residency period; otherwise, the ability to obtain a permanent residency card can be jeopardized.
Accurately completing the I-829 petition at the right time will vastly increase the petitioner’s chances of obtaining US permanent residency under the EB-5 program. The best practices discussed here can be used as a starting point for applicants who are ready to apply for the removal of conditions on their permanent resident status.
Provide the Correct Supporting Documentation
To successfully file an I-829 petition, the applicant must present several supporting documents to USCIS as evidence that they have met the 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 on the evidence applicants must submit. The main categories are as follows:
1. Evidence of conditional permanent resident status
2. Evidence related to the investor’s commercial enterprise, investments, and job creation
3. Evidence for petitioners filing as a former spouse or as a spouse or child whose investor spouse or parent has died
4. Evidence of criminal history
Each investor’s circumstances are unique, so no specific list of required documents exists. However, the guidelines in the sections that follow can provide an overview of the type of documents to include. Some of the documentation will be provided by the regional center, if the investment was made through a regional center, and some by the individual investor.
Collaborate with Regional Centers and Developers
A successful I-829 petition is one built through a collaborative effort between the EB-5 project sponsors, the project developer, the investor’s counsel, and the regional center. To ensure a successful petition, accurately tracking several key metrics is critical for both developers and regional centers.
Among the metrics that must be tracked, the inputs used in the original economic model are of utmost importance. These inputs include items such as hard and soft costs, operational revenue numbers, and the number of jobs—both direct and indirect—created through the project.
In previous submissions to USCIS, tracking mechanisms were not properly implemented ahead of the I-829 deadline and submissions were unable to support the job creation requirements of the EB-5 program. Because USCIS adjudicators are aware of this tendency, project teams must emphasize accurate tracking from the onset and keep precise records of cash flow.
Proving hard and soft costs to satisfy job creation requirements in the economic report can be accomplished by providing actual receipts and proof of expenditures, including invoices and other proof of payment. Developers must begin tracking this as soon as construction spending begins.
From an operational standpoint, USCIS will need to understand the revenue portion of the project to determine whether the acceptable job numbers have been created. Ideally, USCIS will use W-2 forms, I-9 information, and financial statements, preferably ones that have been audited.
The tracking effort does not stop there for these project teams and their affiliated regional centers. In addition to spending and revenue creation, applicants must show that their EB-5 investment has been maintained throughout the job creation period. IRS Schedule K-1 (Form 1065) provides ample evidence to prove to USCIS that this has taken place. At the regional center level, the team must work together with developers and investors to ensure that a social security number has been issued, which is a main component of attaining a form K-1.
Finally, USCIS requires the investor’s funds to be deployed in the project at the time of the investor’s consular interview. The responsibility resides with the regional center and developers to ensure that this occurs. It is crucial for the team to ensure that the investor is fully prepared when the time comes for the first consular interview.
Prepare the Required Individual Investor Documentation
First, the investor must prove that they have lawful conditional permanent resident status. To do so, they must submit a copy of the front and back of their green card.
The investor must also prove that they have met the requirements of the EB-5 program, including job creation and the formation of a new commercial enterprise (NCE). While some of the required documentation will be provided by the regional center and developer, investors who have made direct investments will have to provide all the required documentation.
To prove an NCE was established, the investor can provide items such as tax returns that document the NCE’s existence. The investor must also show that the enterprise existed throughout the duration of their two-year conditional residence. The investor may submit state and federal tax returns, quarterly tax statements, bank statements, contracts, licenses, receipts, and invoices.
The investor must next prove that the required capital was invested as part of the EB-5 program. This can be proven through the submission of items such as bank statements, audited financial statements, or any other documentation that demonstrates the investor’s cash flow to the NCE.
The investor must also provide evidence that the capital investment has resulted in the creation of 10 full-time, EB 5-eligible jobs as part of the EB-5 program. Supporting documentation such as payroll records and tax documents can be used as proof for this part of the I-829 application process.
If an applicant has a criminal history, additional documentation will be needed to add more context to the application. In these situations, certain legal documents must be provided, including court records, law enforcement statements, and any records of arrest, sentencing, probation, and parole.
Although each case is unique and the necessary documentation may differ, the below information is typically required:
- Copy of the investor’s green card
- Copies of spouse’s and/or child(ren)’s green cards
- Tax returns for the commercial enterprise. USCIS will typically ask for returns from at least the past five years.
- Proof of investment into the commercial enterprise. Proof can come in the form of financial statements or bank statements.
- Evidence that the above enterprise is an ongoing operation. This can come in the form of actual receipts, bank account statements, or formation documents.
- Proof of the required full-time employees both at the beginning of the investment and at the time of filing the I-829. Documents such as I-9s and payroll receipts can be used.
- Any relevant information regarding any arrest or conviction
- USCIS-required fees, including a standard government filing fee and a biometrics fee
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 are listed on the Check Case Processing Times page. USCIS may sometimes request additional information that may be necessary to help them adjudicate the petition. They may also request an in-office interview with the applicant. These additional requests emphasize the need for a highly effective application supported by accurate tracking from the beginning.
When an I-829 is approved, the applicant’s conditional residency status is replaced by a lawful permanent resident status. Once this occurs, the investor will receive a new green card reflecting the status change.
What Happens to an Investor’s Status after Filing the I-829 Petition?
Once an application is filed, USCIS will provide a receipt of filing to each of the parties under review (the main investor and their spouse and dependents). Using this receipt, an investor can track their application status. This receipt will also provide confirmation that the conditional resident status has been extended while USCIS is reviewing the petition. In addition, this notice will provide the investor with work and travel authorization.
After filing the I-829, USCIS will send a written notification of the date, time, and location of the applicant’s biometrics (fingerprinting) appointment. It is mandatory for the investor to appear at the appointment 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.
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 filing. The success of the filing will depend on the investor’s current immigration status and the degree to which the original business plan set forth was successful. Investors who have already started the period of conditional residence can still receive 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 time.
It is not required to show USCIS that a successful business was established. If the requisite jobs were created and the application requirements were satisfied, even temporarily, the investor should be granted permanent residence.
If the project has failed before the satisfaction of the EB-5 requirements, capital redeployment is a viable option for an investor. However, the redeployment must be done through the NCE rather than the individual investor.
Because of the importance and complexity of the I-829 petition, investors should work with experienced immigration counsel when preparing their petitions.