Timing and compliance are the two most crucial aspects of the final stage of the EB-5 application process: the I-829 petition. This phase involves removing the conditions on the green card obtained earlier in the process (through adjustment of status) and transitioning to lawful permanent residency in the U.S.
Marjan Kasra from Lawmaks, Irina Rostova from EB-5 Support, and Kyle Walker from Green Card Fund shared insights during a recent EB5Investors.com webinar regarding the timelines involved and legal responsibilities of investors, regional centers (RC), and the USCIS during this phase. Here are some critical points for EB-5 investors to consider when submitting their I-829 petition to maximize their chances of success.
The I-829 phase is as crucial as the first two stages of the EB-5 application process
The EB-5 visa lawyers and the regional center executive agreed that the I-829 petition is essential for investors to prove that the EB-5 project has met the EB-5 visa requirements regarding timing and job creation.
“It’s arguably the most important part of the process to remove conditions on the green card and make you a lawful, permanent resident for life,” said Rostova. “We just got the latest data from USCIS; the average approval rate for the I-829 petitions is 95%. It means the majority of projects are compliant. They’re creating the necessary number of jobs, and USCIS can confirm.”
Regional centers play a vital role in the I-829 stage
Regional centers are responsible for preparing 99% of the required documents as a package for investors to file when they begin their EB-5 application process. This relationship extends to the final stage, when the applicant must provide updated information to prove compliance. Therefore, the consensus is that the RC’s experience is essential for a smooth filing process.
“Some of the more unfortunate situations I have ever seen in my career was when the client picked a project, and they didn’t ask much about the experience or the structure of the regional center,” Rostova said. “They got their initial green card, and then, when it was time to remove conditions, no one was responsible for the I-829 package. We had many stressful months working with immigration attorneys, reaching out to different parties, and trying to pull together the necessary documents and reports. Unfortunately, not everything is sometimes available if the developer is finished and they have already exited the project. Sometimes, it’s very hard to get the developer to send you financial reports.”
Walker added: “The package that we’re helping prepare is really a financial package of dollars going into the project being used for job-creating expenditures. An economic study based on that financial flow of dollars validates job creation. For the most part, if you have a reputable regional center and the project is built, the job creation occurs. It’s very limited circumstances where I haven’t seen that be the case.”
USCIS is improving its processing times for I-829 petitions, but delays may occur
Following the EB-5 Reform and Integrity Act of 2022 (RIA), the U.S. immigration agency has been adjudicating these petitions faster. However, sometimes, it’s still a processing time that takes longer than one year.
“Prior to RIA, they took 3 to 3.5 years, and that was considered normal,” Kasra said. “If you look at the average processing time, it hasn’t changed that much, at least on the website. But we see approvals in 1.5 years to 2 years after the filing. To their credit, the Immigrant Investor Program Office (IPO) is moving faster with both I-526 and I-829 filings. I would say 2 years is a decent amount of time compared to pre-RIA timelines.”
As with any federal administrative process, delays can occur in some cases. That’s why panelists note that current and potential EB-5 investors should understand their right to limitation and the circumstances under which filing a mandamus could help expedite the review of the petition.
“We also often talk to attorneys specializing in federal litigation, and some lawyers would try to file a mandamus, maybe after a year of waiting. I wouldn’t honestly try it after 6 months,” Kasra said. “But I’ve heard success stories after a year of waiting. If you have exigent circumstances where you feel you cannot wait longer than a certain period, you may want to consult with an attorney to file a mandamus. It depends on who you speak with, but some lawyers are more comfortable if at least 2 years have lapsed if there are no specific circumstances warranting a lawsuit. But 2 years is a decent amount of time within which you should expect an adjudication on the I-829.”
Investors must understand the new implications of the EB-5 2-year sustainment period
The panelists emphasized the importance of understanding the requirements for the mandatory sustainment period in EB-5 visa investments, particularly due to updates made after the RIA. USCIS says the 2-year period begins once the investment funds are officially deployed into the EB-5 project. However, it’s important to note that some aspects still need to be clarified regarding when this period formally starts.
“Pre-RIA, you had to sustain the investment at least for the 2-year residency conditional residency period, and because it took such a long time for you to immigrate to the U.S., you ended up having your funds invested with your regional center a lot longer,” Kasra said. “Sometimes, the regional center would have had to redeploy your funds to make sure that you fulfilled the requirement of having sustained your funds within that regional center 2 years after your actual entry into the United States during your conditional residency period. After RIA, instead, they’re saying that it’s once the money is deployed into the project, and it may still be a gray area as to when that period starts.”
Rostova added: “My advice to investors is to go into projects that have the funds for over 2 years and can create the jobs—another thing from a perspective on the investment side. And if we’re talking about reducing your risk, speaking not as an attorney but as a FINRA broker, just because the legal requirement is closer to 2 years does not mean that that will be a safe option for you for a project. You want to have a project that doesn’t take on additional financial risks to finish and repay the funds quickly because, generally speaking, a project that can repay all the funds in just 2 years might be a little risky. The majority of construction projects require three to four years to be completed. Keep in mind the legal requirements, but also that you want your money to go into safer options, and if some longer terms are required to complete a cycle of the project, then that’s what I would recommend investors to consider.”
Repayment does not necessarily happen at the I-829 stage
The repayment aspect of the EB-5 investment coincides with the I.829 stage; however, they are completely separate things. The repayment depends on the specifications stated in the EB-5 project offering documents and the type of financing used, and it’s not something the USCIS looks into when reviewing the petition because it’s not an EB-5 requirement.
“Legally speaking, you should be able to get your money back 2 years past that,” Kasra said. “That said, regional centers have their maturity date. When you’re considering any regional center, you should read your subscription documents, discuss them with the regional center, discuss them with your immigration lawyer, and understand what is prescribed in your subscription document because your money will have to remain invested in that regional center. For whatever that subscription document states, as far as immigration law is concerned, 2 years post-investment into the NCE will suffice. It all goes back to which regional center you’re working with.“
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