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

Learn about the process for removing the conditions on your status as an EB-5 investor and becoming a permanent resident.

By , Attorney

If you obtained a U.S. green card through the EB-5 investor visa program, that original green card gave you what's known as "conditional," not permanent U.S. residence. That's why your card shows a two-year expiration date. This article provides guidance on the process for removing the conditions on your immigration status and becoming a U.S. permanent resident, perhaps working your way toward U.S. citizenship.

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

When Do I Submit My I-829 Petition to USCIS?

The I-829 Petition by Entrepreneur to Remove Conditions on Permanent Resident Status 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 look at the expiration date on your green card and count backward by 90 days. That's the first date upon which you can submit your I-829 petition to USCIS.

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 that petition.

The I-829 cannot be filed more than 90 days before your status expires. This strict 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, 2022. The earliest USCIS can receive your I-829 would be July 3, 2022. If USCIS receives your petition on July 2, 2022, 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, 2022, after your status expires, it will reject the petition (and you will be out of status, potentially leading to removal from the United States).

What Do I Include With My I-829 Petition?

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

  1. Copy of your permanent resident card (green card).
  2. Copies of your spouse and children's green cards. Note that (as of November 2019), the rules require dependents to submit their own petitions if not included with yours.
  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, you must 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 2022) and a biometrics fee of ($85 per applicant in 2022). The fee must be submitted with the other documentation.

USCIS regularly raises its filing fees, so 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 2, Information About You

Be sure to put a U.S. address for where you live. Per the relevant immigration regulation, found at 8 C.F.R. Section 216.6(a)(3), petitioners are not required to be in the United States when they file the I-829, but USCIS will not mail a new green card to an overseas address.

Therefore, if you think you might 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, Parts 3 and 4

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. Please also check to be sure if you can include your dependents in your petition or whether they each need to submit separate petitions.

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

It can take USCIS several years to make a decision on an I-829 Petition. When USCIS receives the I-829, 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. You can check the status of your I-829 online.

USCIS will issue receipt notices to the main applicant and all of the dependents. Each dependent will receive their own receipt notice. This receipt 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 show evidence of your immigration 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 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.

WARNING: Owing to office closures and delays following the COVID-19 or coronavirus pandemic, USCIS is sometimes unable to make a decision on the I-829 within the year before the person's status expires. For information on what to do, see Conditional Residents With Expired Green Cards Have Trouble Getting I-551 Stamps, Due USCIS COVID-Related Office Closures.

What If I Miss USCIS's I-829 Filing Deadline?

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

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 , speak to an immigration attorney specializing in these matters.

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