U.S. EB-5 Program

Many immigrants to the United States receive unconditional Permanent Resident Cards (Green Cards).  Green Cards are valid for ten years.  Other immigrants like EB-5 program immigrants receive Conditional Resident Cards that are valid for two years.  At the end of the second year, the conditional resident files a petition to remove conditions on permanent resident status.  The conditional resident receives an I-797 receipt notice that serves as evidence of immigration status for employment and travel during the time that USCIS evaluates the petition. While the Immigration and Nationality Act (INA) commands USCIS to decide petitions within 90 days, COVID-19 work-related restrictions and antiquated adjudication systems restricted the service.

The Investor Program Office (IPO) at USCIS continues to process direct and regional center I-829, even during the EB-5 regional center program shutdown. United States Citizenship and Immigration Services (USCIS) can take months and months, sometimes years, to approve the removal of the condition and issue a 10-year lawful permanent resident (LPR) card. Conditional LPRs would lose their driver’s licenses; or health benefits because they couldn’t show extended lawful status.

I-829, Petition by Investor to Remove Conditions on Permanent Resident Status

Form I-829 is for immigrant investors to petition to remove the conditions on their, and certain dependents’, permanent resident status which they obtained based on investment in a new commercial enterprise. The petitioner must submit this petition within the 90-day period immediately preceding the second anniversary of obtaining conditional permanent resident status.

I-829 Status Report as of August 2021

This fiscal year has not looked fine for I-829, with increasing processing times and every quarter showing less efficiency than the last. The I-829 inventory reached a record-high 11,160 pending petitions as of June 30, 2021. I-829 is not subject to filing surges, since the volume of I-829 filings is limited by the quota limit on visas issued two years earlier. Since demand cannot vary unpredictably, any inventory pile-ups can only be blamed on IPO poor planning.

On the USCIS Processing Times Page, the present I-829 (Estimated Time Range) starting at 35.5 months shows that 50% of recent I-829 decisions were on cases younger than 35.5 months (i.e. filed since August 2018) and 50% of decisions were on cases that had been pending longer than 35.5 months.

I-829 petitions older than 35.5 months (which USCIS reports accounting for 50% of the little recent adjudication) stand for about 25% of the whole pending I-829 inventory.

Within the 50% of new I-829 decisions made in less than 35.5 months, there was a big range of ages.

What can we anticipate for future I-829 processing times?

As of last official report (FY2021 Q3), IPO had 11,160 pending I-829 as of June 30, 2021, and I-829 productivity was 448 decisions in 3 months, or average 150 decisions/month. If IPO continues to process I-829 at a rate of about 150/month, then it will take 11,160/150=75 months to clear the existing pending inventory. To put it another way, the average I-829 filed on June 30, 2021 can expect a 6-year processing time based on present conditions, unless IPO output improves from its recent level. 

USCIS Extends Form I-829 Receipt Notice Evidence of Status to 24 Months

USCIS’ solution is to grant itself an extension for the period of validity of its documents. USCIS will begin issuing I-829 receipt notices with an automatic extension of two years past the expiration of the LPR card. If your I-829 petition is pending as of September 5, 2021, be on the lookout for a new extended receipt notice.

Effective September 4, 2021, USCIS is extending the time that I-797 receipt notice for Form I-829 can be used to show evidence of status from 18 months to 24 months for petitioners who properly file Form I-829, Petition by Investor to Remove Conditions on Permanent Resident Status. USCIS is making the change from 18 to 24 months to accommodate current processing times for Form I-829, which have increased over the past year.

Conditional permanent residents who properly file Form I-829 will receive an I-797 receipt notice that can be presented with their Form I-551, Permanent Resident Card (also known as a Green Card), as evidence of continued status for up to 24 months past the expiration date on their Green Card, while their case remains pending with USCIS.

Additionally, USCIS will issue new I-797 receipt notices to eligible conditional permanent residents who properly filed their Form I-829 before September 4, 2021and whose cases are still pending. Those I-797 receipt notices will also serve as evidence of continued status for 24 months past the expiration date on their Green Card.

This is an important change, as the original I-797 receipt notices serve as evidence of conditional permanent residents’ status in the United States. With the extension, conditional permanent residents will be afforded an additional six months to use their original I-797 receipt notices for proof of status for work, school, or when traveling abroad when their conditional green card has expired.

As a reminder, conditional permanent residents who plan to be outside of the United States for a year or more should apply for a reentry permit by filing Form I-131, Application for Travel Document, before leaving the country.

FINAL THOUGHTS

The I-797 receipt notice for Form I-829 is important because it serves as the only evidence of the EB-5 investor’s continued lawful status once their conditional two-year permanent residence card expires.

While this is great news, don’t let it mislead you into thinking that removal of conditions is a simple process. Be sure to consult with one of our consultants to determine the best approach for you.

Also, 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.