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Best Practices for Form I-829 Petitions

Best Practices for Form I-829 Petitions

Sam (00:06):
Hi everyone. This is Sam Silverman, managing partner of EB5 Affiliate Network. I’m joined by my partner, Mike Schoenfeld, who’s also on the line, who’s going to join us for today’s “Best Practices for Form I-829 Petitions” presentation. Before we jump into the presentation, just to get a lay of the landscape, we want to start with a very short one-minute poll. So, pay attention to the screen and just fill out these couple of very short questions just so we can get an idea of who’s in the audience and we can kind of make some adjustments to make sure everyone gets the information that they’re looking for.

Sam (01:44):
Okay, great. Thank you, everybody, for quickly filling that out. The next thing we’re going to do is show a very short video that kind of summarizes visually the I-829 process and the different steps involved, just to kind of give everyone a high-level overview. And then, we’re going to jump into some more of the nuts and bolts in the slides on the screen.

Video (02:33):
The I-829 petition is the final step of the visa process for immigrant investors to become permanent residents of the United States. It is filed to prove that all the requirements for the EB-5 project have been met. I-829 approval results in the removal of residency conditions for the EB-5 investor. With I-829 approval, an EB-5 investor, his or her spouse, and any unmarried children can live in the United States permanently.

Video (03:00):
The I-829 petition finalizes the journey begun with an I-526 filing. While an I-526 filing outlines to USCIS how a project will meet the goals of the EB-5 project, the I-829 filing offers proof to USCIS that the project has succeeded with respect to two key criteria. An investor can file an I-829 petition starting 90 days before the end of his or her two-year conditional residency status period. The petition must be filed 21 to 24 months after the two-year conditional residency period begins. Thorough documentation and early preparation are crucial in ensuring a successful I-829 application. Project developers should be sure to coordinate a response team, assemble the required evidence, and file the I-829 petition by the deadline. There are numerous pieces of evidence that the investors must supply with the I-829 petition to prove that all EB-5 program requirements have been satisfied, including a photocopy of the investor’s permanent resident card and those of all family members; proof that a capital investment was made, such as audited financial statements and bank statements; tax returns and documents to prove that the investment remained at risk; payroll records or evidence of project expenditures and operating income to demonstrate required job creation; proof of commercial enterprise project expenditures and income, such as invoices, receipts, bank statements, contracts, and tax statements; and legal documents regarding any criminal history.

Video (04:34):
In the event of an I-829 petition denial, a timely filed appeal can still result in approval. An effective I-829 filing will require updating project documents previously submitted to USCIS and careful coordination. Additional information, such as an economic impact update and photos demonstrating construction progress, may be necessary to sufficiently prove that the required job creation has occurred. EB5 Affiliate Network has helped over 200 project teams successfully prepare USCIS-compliant project documents. EB5AN provides project sponsors and developers with reliable turnkey solution to the I-829 preparation process, including an I-829 cover letter, project document updates, and organized exhibits as part of an I-829 petition that all investors in the project can file. Our experienced team provides institutional expertise and updates project documents with a customized approach for each project. Contact our team today to learn more about how EB5AN can help you prepare the I-829 petition.

Sam (06:08):
Great, thank you very much for your attention. Now, we’re going to shift gears and go through the formal slides and the presentation. As I’ve noted in the chat box that you should have up on your screen, if there are any questions that come up during the presentation, please write them to us in this chat box, and we’ll pause at a few different points during the presentation to try and address some of those specific audience-generated questions as we go.

Sam (06:40):
So, first a quick summary of our company. We have three managing partners: Sam Silverman, that’s me; Mike Schoenfeld, who’s also joined us today; and Timothy Shih. We have various backgrounds in corporate law, management consulting, and finance and investing. We’ll skip through this. Okay. So, the breakdown of today’s presentation—we’ll first start with some of the basics about the form I-829 itself. As we learned in the video, the key components of the I-829 are to demonstrate to USCIS that the requirements for the investor’s EB-5 investment, the “10 job creation” requirement and the “capital at risk” requirement, have actually been fulfilled during the investor’s conditional residence period. The initial filing done by the investor, the I-526, of course, is merely a plan that demonstrates to USCIS how the investor intends to meet the specific program requirements, and USCIS takes that projection, that plan, at face value and, if [the I-526 is] sufficient, approves it, granting conditional residence to the investor and his or her immediate family.

Sam (08:04):
And then, at the end of that temporary period, the investor has to then prove that the requirements that were laid out initially in their I-526 filing have actually been fulfilled. And so, that’s the purpose of the Form I-829—to serve as the final kind of wrap-up of the investment process and document that, in fact, the investment did create at least 10 full-time jobs and that the capital did remain invested and was at risk during the entire required period. And even though the actual investment outcome or actual project nuances and details may not have matched up exactly with what was initially filed in the I-526, that’s okay. It just needs to be documented that the money did remain at risk and the jobs were created.

Mike (09:04):
Typically, the investor’s immigration attorney that filed the original I-526 and I-485, and has stayed with them throughout the entire journey, and will be filing the I-829—one thing that we have found is that it’s sometimes overlooked that during the actual construction of the project and right after the start of it, it’s important to get involved early on in keeping the correct records of all of the construction expenditures and then the operations of the project—whether it’s a hotel or assisted living facility, it can be ahead of the actual I-829 preparation. We’ve seen some clients have issues where they’re trying to look back four years previously on a project and can’t locate all the records. So, it’s extremely important to start with the job creation tracking, and also the at-risk component of the money and track those things earlier on in the process and not wait until the I-829 is due to start that.

Sam (10:04):
Yep, as Mike mentioned, sometimes it can be very difficult to track down general contractors’ records, payment, invoices, older bank statements that could have been generated years ago when it comes time for the investor’s I-829 to be prepared, especially for investors who are in projects where, you know, they may be facing a redeployment scenario, and, you know, due to retrogression, maybe they’re going to be investing in a project or their capital’s going to be at risk and outstanding. In some cases, the EB-5 project’s been completed, you know, in year three and potentially sold, if it was condos or, you know, some other project that was sold, and then the form [I-829] actually isn’t due until, you know, four or five years following that sale. And so, it can be very difficult to go back and, you know, obtain records that take a lot of time to organize and prepare if the capital’s no longer there and the project’s been sold. So, that’s another important thing, too, to consider, and just make sure that the proper record-keeping is being done along the way, especially if there’s a redeployment or a sale—you have to really show that the money has actually remained at risk over that period of time following the redeployment or reinvestment.

Sam (11:31):
So, a little bit about the timing—so, the Form I-829 can be submitted starting 90 days before the end of the two-year conditional residency period. So, that’s basically 21 months following the investor’s initial receipt of their green card. So, once this document is filed, once the Form I-526 is filed, their conditional residency period is extended while the I-829 is being processed. It’s not like a kind of “drop dead, at the end of 24 months it terminates”—as long as you’ve filed the form correctly in a timely manner, you’re going to be able to continue to have that investor remain on their conditional residency period without an issue. So, it’s all about just staying on time, and as the project is being developed and especially on major events, such as construction completion, that’s when you’d want to gather up all of the bank statements for the job-creating entity and the NCE to show that all the money was actually spent and the job creation was met. And then, if there’s a liquidity or redeployment or re-investment event, then at that point, you want all of the documents, transfer wire statements, et cetera, showing that the money wasn’t returned to the investor following that capital event but was actually redeployed or reinvested, et cetera, and continued to satisfy the “at risk” required.

Sam (13:04):
So, a couple of best practices that we’ve seen going through this process across a wide variety of project types—first is just coordinating the response team in advance and making sure that the regional center that you’re working with understands what the requirements are for the Form I-829 and what evidence the regional center is going to want themselves to provide as backup to USCIS as part of the annual filing for the regional center each year. Part of that application is to show what job creation is ongoing and is currently underway under that regional center and any project sponsored by it. So, the regional center is going to want to understand exactly what that job creation looks like, and that’s the same documents, the same backup information, that would be required for each individual investor’s future I-829 filing under that regional center’s project.

Sam (14:04):
So, it’s the same information, but it’s required annually for the regional center. And so, you’re already doing it for that. So, you may as well just have it all organized, you know, timely and know that that information is going to be used for each investor’s future I-829 as well. The second piece they’re assembling—the required evidence. Again, that’s really making a detailed checklist, which we’re going to share later on in this presentation in terms of exactly what types of documents are going to be satisfactory to show that the money did remain invested and at risk and the jobs were created. And the last piece, of course, is just, you know, the nuts and bolts logistics of the filing—make sure it’s filed on time, and ideally have a kind of overall tracking spreadsheet for the project where you’re keeping track of when the investors’ conditional residence period began and then knowing, okay, 21 months following that, that’s when the project and that investor individually is now eligible to begin filing their I-829 petition.

Sam (15:15):
And in general, there’s typically a single template for the I-829 template package that’s prepared that each investor in the project is going to file. So, just like the I-526 kind of project template initially, where all the investors in the regional center project filed the same template set of documents—it’s the same for the Form I-829, where you’re going to have an update to the business plan with what happened with the project and then have an update on the job creation status and a detailed cover letter explaining the flow of funds and how the capital met their key requirements, and then, the actual Form I-829 itself that’s been completed and then is filed on behalf of each individual investor, just like the I-526 form was originally filed by that individual investor’s respective immigration attorney.

Sam (16:21):
The major kind of categories of evidence that are going to be needed here are documents related to the individual investor’s actual permanent residency status—so, their green card, their family members’ green cards. Then, proof related to the capital investment—their initial wire transferring to escrow, if there was an escrow transfer, then from escrow to the NCE, then from the NCE to, potentially, the upstream borrower or directly into the project company, and then statements from the project company demonstrating the capital was spent and where it was spent. And then, the backup invoices showing why that money was wired from one company to the general contractor and all their subcontractors involved in the project. And then, for the actual investment, those same documents plus additional statements from the NCE showing that the investor didn’t receive any return of their principal over the lifetime of the investment.

Sam (17:28):
Then, on the job creation side, depending on what type of project is being done, some projects are going to have job creation from both capital expenditure and from revenue creation, like the development of a new hotel project. Other projects, like a condo tower, are not going to have any revenue or ongoing operational job creation component. So, depending on the project, you’re going to want to have, at a minimum, all of the construction-related expenditures, receipts, invoices, transfers, et cetera. And then, if there’s an ongoing operational component, you’re going to want to have audited financials that demonstrate that the project did actually create a certain amount of revenue or increase in revenue, depending on the structure of the project, and then any associated, you know, tax filings and records to show that that income was actually earned, realized, and the appropriate taxes were paid on it. And then, individually, we want to make sure that the individual investor and his or her family members that received the green cards have remained good residents of the United States and don’t have any, you know, significant legal issues that would prohibit them from becoming permanent residents without any conditions still applying.

Mike (18:50):
So, if you think about the overall structure, it’s two key components that each immigration attorney is going to file. One is the same—

Sam (18:58):
Let’s just spend a quick second on what to do with a denial. So, if an investor is denied, there is an opportunity to file a motion to reopen or reconsider with USCIS. The short answer here is this is fairly rare. Usually, these types of denials are related to a lack of proof—typically, it’s around the job creation. It’s usually fairly simple to demonstrate if the capital remained at risk, but sometimes, there’s a discrepancy with the job creation, or you’re trying to use a different year of revenue, or maybe the construction didn’t exactly come out exactly the way you wanted and there wasn’t enough of a job cushion. So, in these scenarios, it’s usually a very good idea to have a second set of eyes on the materials and try to see if there’s a different way to position things to have some ground for that appeal or directly address whatever question USCIS is poking a hole in to try to make sure the investor does receive their permanent residence and get their conditions removed. The goal, of course, is to avoid this scenario and make sure the documents are all properly done and recorded over time and that there’s a significant enough job cushion, where even if USCIS tries to challenge some of the expenses or revenue, there’s enough job creation and the investor’s going to be approved regardless. But in a worst-case scenario, you have to try to get creative and see if any wiggle room there is around what actually happened and how it can be positioned.

Sam (20:53):
So, once you’re in the process of actually beginning to prepare for the I-829 submissions, one of the first components is the job creation. So, in the initial I-526 petition, you’re demonstrating how the project intends to create the 10 required jobs per investor. In the I-829 petition, you’re demonstrating how those jobs were actually created. So, you’re going to start with the initial job creation or economic impact study that was prepared and work from that backwards to show exactly, “Okay, what was demonstrated? What was projected initially in terms of revenue creation and cost expenditure in the initial economic impact study or job creation report, and then how does what actually happened in the project compare with that initial report that was done?” So, initially, that means gathering up the bank statements, the construction receipts, expenditures—almost always, the numbers don’t exactly match construction budgets and usually are just their best estimate.

Sam (22:20):
So, figuring out, “Okay, how did the budget of actual versus projected differ, and how does that impact the job creation?” Prepare a new job creation report showing exactly what actually happened at the end of the project, how much money was actually spent in each of the different cost categories and/or revenue once the project becomes operational, if there’s an operational component, and then determine, “Okay, we projected initially the project was going to create 220 jobs, but actually we ended up creating 237 jobs. And here’s the breakdown of how that job creation actually happened. 137 were from construction costs, and 100 were from revenue creation. And here’s all of the draws and the different cost categories for the construction showing the money was spent over this timeline. And then, here’s the audit, et cetera—financials that show the project created this amount of stabilized revenue once the hotel was up.”

Sam (23:35):
So, again, as you’re preparing these documents, particularly with the job creation study, the key thing here is keep it simple for the USCIS adjudicator. With the I-829 template itself, the goal is to tell a very simple, straightforward, clear story to the adjudicator of how the project did meet the EB-5 criteria, the 10 jobs and the capital at risk, and then, second, just very logically and simply, prove that those two things happened, and make it as organized and easy to follow as possible. So, a picture is worth a thousand words. So, the more photos, the more illustrative documents, that can be produced, the better, right? And those can be kind of interspersed throughout some of the exhibits—supplements in a separate business plan update and in the job creation updated report to show how the jobs were actually created.

Sam (25:03):
Okay. So, how does EB5AN work with individual clients on preparing for the Form I-829 template submission? So, first, our approach is very collaborative. We interface directly typically with the immigration attorney, the project developer, and any separate vendors, the most common being the company’s accountant, and typically the general contractor of the project to make sure that we’re assembling all of the correct documents that we want to have to show that the job creation did happen and that the investor’s capital remained at risk. So, one of the things that a lot of our clients really like is that they typically will just connect us with the various parties that are going to be able to provide these different documents and then instruct the different vendors to just work with our team to provide the information that we’re looking for. And then, we’ll organize it, lay everything out in the correct format to make sure that it clearly explains how the job creation and the capital requirements were met.

Mike (26:35):
So, at a fundamental level, there’s two key parts to the I-829 petition for each investor. The immigration attorney that’s been working with the investor through the process is going to have a lot of the individual information about the investor and be completing everything related to that for the petition. As Sam mentioned, what you want is a single set of documents that you put in all I-829s, which is an update to the business plan, to the economic report, and all of the proof of the job creation and the capital team at risk. So, what you need is a comprehensive package that shows all of the project-related information. And then, after that is available, then the immigration attorney is able to slot in their individual client’s information for the complete I-829 package that can then be sent to USCIS. One thing USCIS does not want to see is a different package for every investor that’s in the same regional center and in the same project—that’s confusing and increases your chance of denials and other bad things to happen. So, what you want is to be as systematic as possible and have one set of information on what actually happens with the project.

Sam (27:59):
Got it. Thank you, Mike. So, the last thing we’re going to do here is share and go through some of the templates that we’ve prepared that are a really great starting point as you begin to think about preparing the Form I-829 and what types of documents are going to be needed and how to get all those organized in a central place for us to be able to go in and organize and kind of lay out the approach for the adjudicator to review the project. So, the first one of these forms is our “getting started” guide. So, this form lays out the basics of what requirements are going to be needed to be satisfied the form. So, why the form’s important, a little bit about the timing, the next steps for how to put together the required documents, and then a little bit about how we approach the service offering for preparing the Form I-829 template that’s required for each investor.

Sam (29:05):
The second form here is the actual data request list. So, as you’re thinking about putting together and working on the list of documents that’s going to be needed for each individual investor for their Form I-829 submission, this list is a fairly comprehensive outline that addresses all of the different types of documents for regional center documents; petitioner-related documents; NCE, JCE, project documents; and other material agreements that you’re going to want to have on hand to be able to be correctly referenced in the Form I-829 submission. Then, finally, the last file is this detailed Excel file, which lays out more on the job creation side and provides some templates for the construction timeline of the project, which impacts the job creation—a 24-month or greater construction period is going to materially increase the amount of job creation.

Sam (30:11):
So, you’re going to want to have very clear documents that explain for the adjudicator how the project did actually last for at least 24 months to show how the job creation, you know, is justifiably going to utilize the higher job multipliers for construction. Then, the actual development costs—so, what was projected initially in the I-526? And then, how does that differ from the actual development cost that happened in the project? So, looking at the timeline example, here’s an example of a sample project that happened a couple of years ago. Sitework, clearing, landscaping, lobby, construction, et cetera—and then, a blank template that you can use for your own project. And then, on the development cost side, land cost financing, hard–soft cost totals, and then, the same thing but a blank version that can be adjusted for your specific project.

Sam (31:14):
So, getting together this information and working together with the correct vendors or project professionals—an accountant and, typically, general contractor are going to be the most important parties—using these files as a starting outline for what information you want to be able to capture is going to be really important, and making sure that that happens, you know, during construction and, at a minimum, right when construction is completed, when all of those documents are readily available and it’s on the forefront of everyone’s mind, is important in the development of the project. So, with that, we’ll take a minute and pause for questions, and then proceed from there. And I’m going to share a link here to those three files so that everyone can take a detailed look through those at their leisure. So, at this point, we will turn it back over to Mike with any final thoughts. And then, I think we have a couple of questions here as well. So, if you have a question, please shoot it over to us, and we’ll cover those after Mike jumps in here.

Mike (32:44):
So, the main things that I want to leave you with are, first, it’s critical to stay organized along the way during the project and have all the information available and well-organized to make your life easier as you get closer to the I-829 stage. So, rather than waiting until an investor’s I-829 is ready to be filed, which, due to processing delays, could be four years later, five years later after the investor initially files their I-526, things could have changed. The project team could have changed. And the same people that you were working with before might not even be at the company anymore to help you out. So, first is preparation. Second would be making sure that when you are filing the I-829 as an immigration attorney, as you’re filing this, make sure that there is a single package that’s being used on the business creation side with updated docs for all of the investors.

Mike (33:37):
And this is how we actually work with many immigration attorneys on this—we get pulled in to help on the updating of the economic report, putting together updated documents on the project, producing the business plan summaries of what happened, and the template. And that way, the lead immigration attorney knows they have everything that’s needed for the investors, and we’re able to coordinate with—if there’s several immigration attorneys that work with individual investors on the deals, we’re able to coordinate with them as well to give them this package that they can all use in addition to, of course, their individual client information. Oh, great. So, we have a question. So, one question that we had is, “How long does it take to prepare an I-829?” So, this answer is very dependent on how well organized the information is. If everything is well organized, we can produce this in two to three weeks for a client in terms of the updated jobs report and small updates to the business plan.

Mike (34:32):
And that would be if every piece of information we needed was already in one place and organized. The other side of the equation is if you haven’t started collecting the data and it’s very stale and it’s going to take a long time to track it down—it could take two months plus to get all the right people involved to get the information. So, primarily the bottleneck here is on the client side of being able to get the information that we’ll need or getting us to the right people that we need. So, it can be as quick as possible as of a couple of weeks, or it can drag out pretty significantly.

Mike (35:07):
Then, one other question is, “When should we start thinking about the I-829 filing?” So, if you’re the project sponsor and have many investors that are already through the I-526 process with approved I-526s, it’s probably the right time to start thinking about updating some of the documents. You could need smaller tweaks at the very end as the individual investors are about to file their actual I-829s with updated actuals of a year in the future, but if it’s a construction project, you can get all of those details in place and everything updated, especially if all the jobs have already been created well ahead of time, so that there’s no scramble at the end trying to gather information.

Sam (35:50):
One other question we have is, “After submitting the I-829 petition, how quickly will the investor petitioner get their receipt notice for the filing?” Typically, that’s just a couple of weeks to get their receipt notice. That’s why it’s really important to try to file the I-829 as close to the 21-month period as possible. That’s when you can initially file it. So, then, you know, at that point, when you file it in the 21st month, you’ve got a three-month window there to get the receipt notice and make sure that the forms have been filed correctly. And so, the investor is not going to have any kind of a lapse or a gap with their conditional residence status at that point. There’s no specific timeline for how long that gets extended—it’s just as long as you’ve filed it and you can prove that it’s been documented, it can continue to be extended. You just have to make sure that it’s filed timely and that you have the records that that was the case. Let’s see.

Sam (37:00):
We had another question about interfiling with the I-829. In general, it’s usually best to not interfile with an I-829 and just to wait until USCIS issues a question or request for evidence (RFE). If there is a ground for an RFP, that’s going to be answered. In the meantime, though, you would try and get as organized as possible to, again, address and be able to really prove without question that the capital remained at risk and the jobs that were required were created.

Mike (37:37):
And I think that one is pretty specific to the individual case of why you would want to interfile. So, that would be much more specific, but generally, that’s right, it’s “get everything organized and ready to respond.” Hope you get an automatic approval and you don’t have to worry, but if there is an RFE, being prepared is better than not.

Sam (37:56):
Yep. Another question around petitioner documents versus regional center or project documents—in general, this is much more about the project documents, showing that the investor’s money remained invested in the project and the project created the jobs. On the investor side, you’re really just looking to prove that the investor didn’t have any criminal issues and that the green card was actually issued and they got it and their dependents or immediate family members also received it and remained in compliance. So, in general, it’s a fairly light exercise on the individual investor’s side, but it’s much more intensive on the project development side.

Sam (38:45):
Okay. Yeah, I think that addresses all of the individual questions that we got. Yeah, so I’ve put the link for the individual three handouts that we discussed, that I pulled up on the screen there, into the chat box. And I’m going to put the link again there right now. So, just hold on one second.

Sam (39:17):
Just in case it didn’t come through the first time. So, if you click that link, you’ll be able to access the three files—the two PDFs and the Excel template—and take a look through that. And then, once you’ve had a chance to review that, please let us know if there are any questions that come up, and we’re obviously happy to chat more individually for specific projects and specific cases. We just want to make sure that people have the right information early on in the process, so that documents that wouldn’t be able to be obtained years in the future are, at least now, quickly downloaded and stored away so that they can be quickly referenced without major scrambling later on when these forms are actually due to USCIS. So, yeah, our number is (800) 288-9138, and our email is listed on the screen. So, thank you again for your attention today. And yeah, we hope it was helpful, and we look forward to working with you in the future, but thanks.