U.S. EB-5 Program

As an EB-5 permanent resident, when you get a green card, you are affirming that you wish to permanently reside in the United States (U.S.). Thus, it is advisable to stay in the U.S. as long as and for as many days as you are able. However, many EB-5 permanent residents may need to spend most of the time back in their home country for business purposes. In this situation, you must obtain a re-entry permit before you leave U.S. and then you could stay out as long as you need to without having deemed to have given up your green card. Your dependents, however, are encouraged to live and work or go to school if at all possible instead of leaving and staying out with you. 

 
Two of our clients recently received their EB-5 visa, landed in U.S. and received their U.S. permanent residency through the EB-5 program. They contacted us and they clarified that their plan is to stay in United States for only six weeks. Then, they will return to Kuwait and Saudi Arabia to resume their jobs and have their kids attend school. Later, in 2019, they plan to move to U.S. permanently. For such cases we suggest to obtain Re-entry Permit .
 
ABANDONMENT OF PERMANENT RESIDENCE:
 
A number of circumstances may result in loss of permanent residence:

• Accepting a job abroad,
• Filing a tax return as a non-resident;
• Staying outside the U.S. for more than one year without a valid re- entry permit,
• Surrendering your green card.

In determining whether you have abandoned residence, USCIS will consider a number of factors. No one factor will be decisive.
 
In the event you spend an extended period of time abroad, the USCIS will consider the following as evidence of uninterrupted intent to reside in the U.S. :

• Family ties,
• Property holdings,
• U.S. bank accounts,
• Business affiliations,
• Club memberships,
• Tax returns.

You do not necessarily have to own or rent a home here, but that is always a helpful factor.
 
On the other hand, the USCIS may consider the following to indicate abandonment:

• If you never spent any significant time here;
• Never established a home here; or
• If you enter the U.S. with a foreign billfold, foreign business cards, or
• Refer to your residence overseas as “home.”

These facts may call attention to a possible loss of residence and result in further questions.
 
RE-ENTRY PERMITS:
 
If you will possibly be outside the U.S. for more than six months it is advisable to obtain a
re-entry permit which will allow you to remain outside the U.S. for up to two years. The application for a re-entry permit must be filed and received by the USCIS before you leave the U.S., but processing may be completed while you are overseas. The re-entry permit cannot be extended, but you can apply for a new one for an additional two-year period. After that you can only get a re-entry permit valid for a one year period and it may be difficult to get one.
 
WHO NEEDS A RE-ENTRY PERMIT?
 
There a number of circumstances in which it is advised that lawful permanent resident (LPR) get a re-entry permit before travel abroad. 
A lawful permanent resident (LPR) should obtain a re-entry permit if:

1. They will (or potentially could) spend more than more than one (1), but less than two (2) years, outside the U.S.
2. They will spend more than six months outside the U.S. for two consecutive years.
3. They will be frequently traveling in and out of the U.S. for considerable amounts of time. A re-entry permit would assist to express the continued intent to keep U.S. permanent residency. Also it helps avoiding questioning at the U.S. border.

HOW TO APPLY FOR A RE-ENTRY PERMIT & WHAT DOCUMENTS ARE REQUIRED? 
 
You have to apply for your re-entry permit before leaving the U.S. The first step in this process is to fill out Form I-131, issued by U.S. Citizenship and Immigration Services (USCIS). This form is used for a range of different types of applications for travel documents, such as for people applying for Refugee Travel Documents, so simply don't fill out the parts that don't apply to you.
You'll also need to collect the following to include when submitting your Form I-131. 
 

• Proof of your permanent residency status, such as :

1. A copy of green card (both sides)
2. Or of the passport page showing admission as a permanent resident.

• Two color photos of you, passport style.
• Payment for application fee, and;
• Payment for biometrics fee. 
• You'll need to submit your application to U.S. Citizenship and Immigration Services (USCIS) by mail, using the address given on its website with the instructions for Form I-131.

RE-ENTRY PERMIT PROCESSING TIME

• 4-8 weeks for biometrics after USCIS receives I-131 application.
• 24-36 weeks for document production & delivery.

The re-entry permit application (Form I-131) is filed with USCIS along with supporting documentation and the correct filing fee.  Effective April 2008, all re-entry permit applications include a required biometrics processing component.  Each applicant must submit to biometrics processing at a local USCIS service center before his or her re-entry permit can be issued.  While biometrics can be rescheduled one or more times, failure to attend the biometrics appointment within 120 days of the application receipt date may cause the re-entry permit to be denied.
 
A regular processing re-entry permit application can take between 1-2 months from the time of applying to the biometrics appointment; with another 6-9 months for the actual re-entry permit to be produced and mailed to the applicant.  If you have a foreign passport and can travel internationally, then you can depart the U.S. after processing the biometrics.   LPRs that need the re-entry permit for international travel would need to wait until its production before they can make travel arrangements and depart the U.S.
 
EXPEDITE PROCESSING FOR RE-ENTRY PERMIT
 
If needed, there is the opportunity to apply for a re-entry permit with expedited processing. USCIS has established an “expedited processing” procedure which permits, under certain circumstances and emergencies, the biometrics to be scheduled on a first-available basis so that the applicant can travel abroad. 

• 2-4 weeks for biometrics
• 8-18 weeks for document production and delivery

Expedited processing is only available for some situations. Those situations might include:

• Scheduled travel (plane ticket purchases)
• Work schedule abroad (must appear for a new assignment abroad)
• Medical needs (urgent surgery abroad)
• Severe financial loss
• Extreme situation
• Nonprofit status while furthering the interests of the U.S.
• USCIS interest
• Error by USCIS

When filing a re-entry permit and requesting expedited processing, include prepaid FedEx envelopes to that USCIS can promptly return the biometrics notice back to you.
 
CAN A RE-ENTRY PERMIT BE DENIED?
 
A re-entry permit can be denied for many reasons, including if you fail to remember to include the appropriate documents or fee. One main reason for denial is if you have a re-entry document already and it is still valid. Certainly, if you don't actually have it any more, because it was lost, stolen, or ruined, you should give details in your application, and USCIS can send you a new one.
 
Green Card holders who have been denied a re-entry permit can make an appeal with 33 days upon receipt of the denial letter. All instructions and requirements for the appeal will be stated in the letter. Also, being scheduled for biometrics does not imply a future approval. Finally, the application should also contain information as to why the LPR is requesting a - permit, why they're leaving the country for an extended period of time, and their intent to return to the U.S. failure to provide the required information may force a Request for Evidence or a denial of the application.
 
FINAL THOUGHTS
 
A permanent resident of the U.S. (whether conditional or not) must maintain the intention to permanently reside in the U.S. .
Immigrating requires you to live and work in the U.S. Any absence of 6 months or longer breaks the continuity of your residence and impacts eligibility for citizenship should you apply for it later. In some cases even absences of 3 months are suspicious so you need to show you are taking steps to finish your affairs abroad.
 
If you plan to resume your job outside the U.S. and your kids will be in school outside the U.S., you should apply for re-entry permits after you are admitted to the U.S. on immigrant visas. 
 
If you have any questions about your need for a re-entry permit or the process of applying for such a permit, contact us. Quebec investment consultation and management services LLC (QICMS) can help you with the application and provide you with the guidance you need to protect your right to return to the U.S. .