Filing Form I-829 to Remove Conditions on EB-5 Status

If you received "conditional residence" through the EB-5 investor visa program, you will need to complete and submit for I-829 within the time limits to become a legal permanent resident.

If you obtained a green card through the EB-5 investor visa program, that original green card gave you what's known as "conditional," not permanent residence -- and your card showed a two-year expiration date. This article provides guidance on the process for removing the conditions on your status and becoming a permanent resident.

Keep careful track of the expiration date of your status. To ensure that you don't lose it, you must file the I-829 Petition, provided by U.S. Citizenship and Immigration Services (USCIS), to remove the conditions on your status, within a prescribed time window. 

When Do I File My I-829 Petition?

The I-829 Petition by Entrepreneur to Remove Conditions must be filed “within the 90 days preceding the second anniversary of the date you obtained your conditional resident status.” In plain English, that means you can look at the expiration date on your green card and count backward by 90 days to figure out the first date upon which you can file your I-829 Petition.

By the way, your expiration date is calculated by the date you become a conditional resident, NOT the date upon which you filed your I-526 Petition, nor the date upon which USCIS approved the petition. 

The I-829 Petition cannot be filed more than 90 days before your status expires. The 90-day limitation includes weekends as well as the final day on which your status actually expires. For example, let’s say your status expires on October 1, 2014. The earliest USCIS can receive your I-829 Petition would be July 3, 2014. If USCIS receives your petition on July 2, 2014, or earlier, it will consider the petition "untimely filed," and will reject and return it to you. Similarly, if USCIS receives the petition on October 2, 2014, after your status expires, it will reject the petition (and you will be out of status, potentially leading to removal from the U.S.).

What Do I Include With My I-829 Petition?

The I-829 must be accompanied by extensive documentation regarding your investment into the U.S. commercial enterprise. Include the following documents (while taking into account that because every investment case is different,  some of these may not apply to your specific situation): 

  1. Copy of your permanent resident card (green card).
  2. Copies of your spouse and children’s green cards.
  3. The commercial enterprise’s tax returns for at least the past five years.
  4. Evidence of your investment into the commercial enterprise, such as audited financial statements and/or bank transfers.
  5. Evidence of the commercial enterprise’s ongoing operations, including invoices/receipts, bank account statements, formation documents, and business licenses.
  6. Evidence of the number and existence of full-time employees at the beginning of the investment and at the time of filing the I-829, such as I-9s, payroll documents, and paychecks (to prove that your investment created the requisite number of jobs for U.S. workers).

Additionally, if you were arrested/convicted of a crime after you became a conditional permanent resident, submit all court records concerning the arrest/conviction (but be sure to consult with an attorney about whether you have become "inadmissible" and therefore ineligible for permanent residence). 

Finally, the I-829 Petition has a filing fee  ($3,750 in 2014) and a biometrics fee of ($85 per applicant in 2014). The fee must be submitted with the other documentation. The filing fees are subject to change, and you should consult the Form I-829 Form Instructions available at www.uscis.gov/i-829 to confirm the correct fee amount.

**Pay Attention: Specific Sections of the I-829 Form

The following are a few of the most critical aspects of the Form I-829 that deserve special attention:

Form I-829, Part 1

Be sure to put a U.S. address. Per the relevant immigration law, found at 8 CFR 216.6(a)(3), petitioners are not required to be in the U.S. when they file the I-829, but USCIS will not mail a new green card to an overseas address. Therefore, if you think you may be out of the country after you file the I-829, you must still provide a U.S. address to which USCIS may send correspondence and your new green card.

Form I-829, Part 3

Be sure to include all dependents (spouse and children) on the form.  Failure to do so will result in the dependent’s status expiring and potentially serious immigration consequences.

What Happens to My Status After Filing the I-829 Petition?

It can take USCIS several months (or longer) to make a decision on an I-829 Petition. When USCIS receives the I-829 Petition, it will send you a receipt notice (just like with all other immigrant and nonimmigrant petitions). The receipt notice will have a Receipt Number located in the top left corner. By going to www.uscis.gov and typing in that number, you can check the status of your I-829 Petition.

USCIS will issue receipt notices to the main applicant and all of the dependents. Each dependent will receive his or her own receipt notice. This receipt notice extends your conditional status by one year (while USCIS adjudicates your petition) and also provides you with work and travel authorization. Do NOT misplace this receipt, as it is required to evidence your status and work/travel authorization.

Additionally, after you file the I-829, USCIS will send you written notification of the date, time, and location of your biometrics (fingerprinting) appointment. You must appear at this appointment or your petition may be denied. This notice will contain very important information regarding the steps you must take if you need to reschedule your biometrics appointment. Pay careful attention to this notice and make sure you attend the appointment, or timely request a rescheduling.

What If I Missed the Filing Deadline?

As stated above, USCIS expects you to file the I-829 Petition within a very strict filing time frame. However, if you can show extenuating circumstances justifying your failure to file, USCIS may accept a late application. Such extenuating circumstances will be analyzed on a case-by-case basis.

Failure to timely file can cause serious immigration consequences, including the accrual of unlawful presence and the initiation of removal proceedings. To ensure that you do not fall out of status while switching or terminating your employment, it is highly recommended that you speak to an immigration attorney specializing in these matters.

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