Removal of conditions for EB-5 immigrant investors
After nearly two years, a petition to remove the conditional residency must be filed.
To remove the CR status, must petition within 90 days before 2nd anniversary. File request on I-829.
Petition must contain facts and information demonstrating that [8 C.F.R. §216.6(a)(4)]
The CR invested or was actively investing the required capital and it was sustained throughout the period of CR status;
The CR sustained the enterprise and investment,
(e.g., bank statements, invoices, receipts, contracts, business licenses, and tax returns, including quarterly statements) requirements, i.e., “substantially met the capital investment requirement of the statute;
The CR “created or can be expected to create within a reasonable period of time 10 full-time jobs for qualifying employees,”
If 10 jobs were not created within the 2-year period,
USCIS officers should consider when the jobs will be created,
The reasons for the delay in creation not contemplated in the original I-526,
And the nature of the industries the jobs are to be created.
If after considering the evidence the officer determines that the jobs are more likely than not going to be created within a reasonable time,
The I-829 should be approved.
The regulations define “qualifying employee” as a USC,
LPR or other immigrant lawfully authorized to be employed in the U.S.
Including (but not limited to) conditional resident, asylee, refugee, and person under suspension of deportation.
Does not include NIVs,
The investor or his family.
USCIS believes that they can use I-9s to determine whether the employees qualify.
If it is based upon preserving jobs in a troubled business,
The regulations require a showing that the investor maintained the number of existing employees.
Without support in the statute or regulation USCIS maintains that a minimum of at least 10 jobs (not the “existing” jobs) must be sustained and preserved.
Relocation of Jobs: USCIS also maintains that the relocation of preexisting jobs from another location to a new location or facility based on the applicant’s investment in a new or renovated facility,
Would not be considered to be newly created jobs.
Travel During Pendency of I-829 and Extension of I-829: USCIS is required to document CR status until CR status has been removed or the I-829 is denied.
Even if USCIS denies the I-829 it must still provide a temporary I-551 in CR’s passport or Form I-94,
With a temporary I-551 pending a final order of removal.
Persons who are overseas with an expired I-551 may be admitted by obtaining a transportation letter at the consulate.
Yates & Cuddihy, supra.
A CR who presents an expired I-551 with a receipt issued within the past 6 months for an I-829 may be admitted
Change in TEA status: If the investor made a $500,000 investment based upon the investment in a targeted employment area and received his CR status,
A change in the TEA status of the area (i.e., it ceased to be an area of high unemployment or a rural area) prior to his filing the I-829 will not affect the approval of the I-829.
Deference Granted to Prior I-526 Approval Except for Legal or Material Changes: Favorable decisions in the I-526 regarding:
(i) the capital investment structure of the enterprise;
(ii) the determination that it is a “new” commercial enterprise;
(iii) the indirect/direct methodology for job creation in regional center cases;
(iv) the reduced capital investment for a TEA; and
(v) that the capital was lawfully obtained “should generally be given deference.
” The Service has also acknowledged that: “In some instances,
The adjudication of EB-5 petitions has been prolonged due to the issuance of requests for evidence (RFEs) that inappropriately seek to revalidate previously favorable determinations.”
Material Change—USCIS maintains that “a previously favorable decision [on an I-526] may not be relied upon in later proceedings where,
For example,
The underlying facts upon which a favorable decision was made have materially changed,
There is evidence of fraud or misrepresentation in the record of proceeding,
Or the previously favorable decision is determined to be legally deficient.”
If the documentation presents material inconsistencies,
The officers are directed to require the petitioner to resolve them prior to approval.
USCIS’s initial position was that a material change from the originally filed I-526 barred the Service from approving the I-829 and the petitioner was required to begin anew by filing a new I-526.
However, this position is currently under reconsideration and as of the publication of this edition,
It appears that USCIS will not deny an I-829 that contains a material change but will adjudicate the application to determine whether it is otherwise in compliance with the statute and regulations.
If in compliance despite the material change it will approve the I-829.
Adjustment of Status to LPR under Different Category: USCIS has not established regulations permitting AOS under a separate category while in CR investor status.
However, the applicable law for CR marriage based status allows AOS through a separate marriage upon withdrawal of CR status.
