How Does a Lengthy I-829 Application Processing Time Affect an EB-5 Investor’s Immigration Status in the United States?

The Immigrant Investor program is perhaps one of the most direct ways for a foreign national to obtain a green card in the United States. After an Investor’s I-526, Immigrant Petition by Alien Entreprenuer application has been favorably adjudicated, the Investor (and each of his or her qualified family members in some instances) will receive a conditional green card. The conditional green card expires within two years of the issuing date. In order to remove the conditions, and thereby obtain a green card with no restrictions, the Investor must file an I-829, Petition by Entrepreneur to Remove Conditions on Permanent Resident Status, referred in this article as I-829 Application.

USCIS advises that an Investor should file an I-829 Application ninety days prior to the expiration date of the conditional green card. Many Investors do file timely I-829 Applications but are made to wait for periods longer than three months for a decision on their applications. Their conditional green cards therefore expire prior to USCIS making a decision on their I-829 applications.

A lengthy I-829 Application process poses several issues for an Investor. This article focuses on an EB-5 Investor’s immigration status in the United States while his or her I-829 Application to remove conditions is being processed. These guidelines also apply to family members, called derivatives, who received conditional green cards via the Investor.

As of July 14, 2016, the USCIS website indicates that the processing timeframe for I-829 Applications is 20.1 months. Given that an Investor may file an I-829 Application no sooner than approximately three months prior to the expiration date of his conditional green card, this estimation implies that an Investor’s conditional green card will expire before USCIS makes a decision on his I-829 application. An Investor may be concerned how his expired conditional green card affects his immigration status, ability to work and his ability to travel internationally. Each of these concerns is addressed below.

Investor’s Immigration Status

While an Investor’s I-829 Application is being processed, the Investor is still considered a permanent resident (a green card holder) of the United States. Upon receipt of an I-829 application, USCIS mails the Investor a receipt letter that extends the conditional green card’s expiration date by one year. When asked for proof of status, an investor should use his expired green card and the extension letter simultaneously until his I-829 Application is approved and he receives a permanent green card.

Investor’s Ability to Work in the United States

Many employers request proof of eligibility to legally work in the United States. An Investor may provide his expired conditional green card and the extension letter to his employer as proof of eligibility to legally be employed.

Investor’s Ability to Travel Internationally

An Investor may leave the United States and reenter as if he or she is a green card holder. However, in order to avoid confusion or being detained, an Investor should always present the extension letter together with the expired conditional green card any time he is required to furnish a green card.

What to do when the I-829 extension has expired and investor’s application is still pending with USCIS?

Since the current average processing time for an I-829 application is 20.1 months, it is very likely that your petition will still be pending while your extension expires. In this circumstance, the investor can make an Info Pass appointment with a USCIS office in order to get a stamp in his/her passport, extending the conditional Green Card by an additional six months. Please note that this stamp is only required if you wish to travel outside of the U.S. For all other instances, your expired Green Card and I-829 receipt (extension letter) are sufficient proof of your U.S. residency.

To summarize, while an Investor’s I-829 Application is being processed, nothing changes from an immigration standpoint. The Investor remains a conditional resident until USCIS adjudicates his I-829 Application. It is also important to note that an I-829 Application carries complexities that may be best addressed by an attorney. I encourage you to discuss your application with an experienced immigration attorney during any stage of the process. 

Vaughan de Kirby
California Immigration Attorney

EB-5 Regional Center Program Ends 12/08/17

Congress has extended the current Regional Center program to December 8th, 2017, at which time it will sunset unless extended. We anticipate future legislation that will call for an increased investment amount and more stringent requirements. For this reason, we recommend to our clients that they take action under the current law if at all possible.

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