Removing Conditional Status on an Investment Based Green Card

If you obtained conditional green card through investment (EB-5), and are facing the expiration date, you'll need to petition to remove the conditions and become a permanent U.S. resident.

If you are a green card holder who obtained two-year, conditional permanent residence through investment (the EB-5 investor visa program), and you are facing the expiration of your status, this article will show you how to petition to remove the conditions on your status and become a permanent resident of the United States. 

As an unconditional permanent resident, you will be able to continue to live, work, and travel in the U.S. using your green card for the rest of your life. The failure to remove the conditions on your status, as discussed below, will result in the immigration authorities initiating removal proceedings against you.

How Do I Know Whether I Have Conditional Permanent Resident Status?

If you received your green card by virtue of investing into the U.S. (i.e., you filed an I-526 Petition for Alien Entrepreneur and U.S. Citizenship and Immigration Services or USCIS approved your petition and issued your green card), then you are a conditional permanent resident. All green card holders who obtain permanent residence through the EB-5 investor visa program are conditional permanent residents. There are no exceptions. 

Additionally, the conditional permanent resident status extends to your dependents (spouse and children). You must file to remove the conditions on your dependents’ statuses at the same time you apply to remove your own conditions.

What If I Don’t Apply to Remove the Conditions on My Status?

After USCIS approved your permanent residence, USCIS issued your permanent resident card (“green card”). Your green card will contain the date you became a permanent resident and the date your conditional residence status expires. Your conditional residence status is valid for two years. For example, if you became a permanent resident on January 1, 2014, your green card will state that your status (and the green card itself) expires on January 1, 2016.

If you fail to submit your petition to remove the conditions on your status within the 90-day window before its expiration, your status will terminate on that date. The U.S. Department of Homeland Security will then issue you a Notice To Appear in removal proceedings (an NTA). Unless you can demonstrate to the immigration judge at the removal hearing that extenuating circumstances prevented you from applying for removal of your conditions on time, the U.S. will deport you and your dependents.

How Do I Apply to Remove the Conditions on My Status?

To remove the conditions on your status, you must submit an I-829 Petition to USCIS. This petition must contain specific documents that demonstrate you maintained your investment in the U.S. commercial enterprise. These materials include proof of employment creation (I-9s, W-2s, paychecks and payroll records), the commercial enterprise’s business license and lease for its premises, financial documentation of the commercial enterprise, and so forth. 

For more detailed information on completing the I-829 Petition, please see "Filing Form I-829 to Remove Conditions on EB-5 Status."

Removing Conditions – Biggest Challenge

The biggest challenge with removing conditions on your green card is convincing USCIS that you have met the conditions of your original approved I-526 Petition, namely that you have invested the requisite amount in the U.S. commercial enterprise (either $1 million or $500,000 depending on region) and that you have generated the required ten full-time employment positions for qualified U.S. workers. These were the conditions set forth by the I-526 petition that you prepared at the outset of this process.

Unfortunately, applicants who did not have an immigration attorney complete the I-526  petition on their behalf often fail to fully understand the conditions of their status. They may not have fulfilled the conditions, and will find it difficult to provide USCIS with all of the required information as a result -- perhaps not even knowing what is, in fact, required. USCIS denies a surprising number of requests to remove the conditions on residence, meaning that the applicants lose their U.S. residence and can no longer remain to manage their investment.

The specific parameters of your conditional status, and thus what you are required to document, are unique to your situation. If, for example, you invested in a commercial enterprise that is located in a Targeted Employment Area (TEA), then your required investment was likely downgraded from $1 million to $500,000.  Additionally, if you invested in a TEA, it is likely you are able to count job positions that were indirectly created through your investment, along with jobs that were directly created, when fulfilling the job creation requirement.

To overcome the various challenges in the application process, you must find out beyond a doubt what conditions you were subject to and be able to prove that you met these conditions. It is highly recommended that you speak to an immigration attorney specializing in these matters when the time comes to remove the conditions on your green card.

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