The Form I-829 is filed by conditional permanent residents who obtained status through an EB-5 qualifying investment and who want to remove the conditions. These “conditions” relate to the job creation and sustainment provisions of the EB-5 investment. An EB-5 investor must show that a minimum of 10 positions have been created as a result of his/her investment and that the EB-5 investor sustained his/her investment over the two years of conditional residence.
THE ADJUDICATION TIMETABLE FOR EB-5
Congress mandated the Form I-829 phase of this EB-5 immigration process to take a maximum of 180 days for U.S. Citizenship and Immigration Services to make a ruling. “[T]he Attorney General shall make a determination, within 90 days of the date of such filing or interview (whichever is later), as to whether the facts and information described in subsection (d)(1) of this section and alleged in the petition are true with respect to the qualifying commercial enterprise.”[1] The “decision on the petition shall be made within 90 days of the date of filing or within 90 days of the interview, whichever is later.” [2] Taken together, this sets up an enforceable, mandatory adjudication timetable.
THE REALITY OF USCIS’ I-829 INTERVIEW
The Congressional Research Service has stated plainly: “USCIS is required by statute to interview immigrant investors within 90 days of submitting Form I-829, but the agency also has the authority to waive that requirement.” The same report noted that the USCIS interviewed only 44 Form I-829 applicants in FY 2018, despite it deciding 2,714 Forms I-829 during this time period, meaning USCIS only interviewed 1.6% of applicants.
Yet, in nearly every I-829 case, USCIS has violated the statutory deadline because it took no action within 90 days of a filing’s receipt – not scheduling an interview, not waiving an interview deadline or interview, and not making a final decision.
In fact, I-829 processing times continue to climb. USCIS recently updated its Processing Times page to state that 80% of Form I-829 cases are adjudicated in 56.5 months. In the first quarter of FY 2022 (October 1, 2021 to December 31, 2021), USCIS adjudicated 326 Form I-829s. Over 11,000 Form I-829 petitions remain pending.
CONSEQUENCES FROM THE EB-5 DELAYS
Conditional green card holders are suffering with the bureaucratic challenges that arise from USCIS delays. It damages their ability to live in the United States and to fully derive the benefits of their conditional lawful permanent residency. These individuals must obtain Form I-551 stamps on their passports every year after the automatic extension (18 months or 24 months) expires, frustrating driver’s license renewals, work authorization, and international travel. Moreover, it impacts their ability to naturalize and become U.S. citizens.
One solution to compel USCIS to finalize a Form I-829 adjudication within a reasonable amount of time, is to file a lawsuit in federal court under the Administrative Procedures Act. This litigation strategy is working. In the past 18 months, there has been hundreds of lawsuits on behalf of conditional permanent residents, and, after negotiations with government attorneys and some motion practice, USCIS often agree to adjudicate. Of course, a lawsuit shouldn’t be filed without expecting a fight from the government. It has numerous tools to postpone an order by a federal judge who ruled that USCIS’ delays are unreasonable. This includes motions to dismiss, motions to sever and motions to transfer. Because of these obstacles, working with experienced litigation attorneys who understand the complexity of EB-5 is critical.
WILL USCIS RETALIATE AGAINST MY LITIGATION?
Another consideration related to the filing of a lawsuit is retaliation – a question that nearly every potential plaintiff asks during an initial consultation. USCIS certainly has the authority to request additional documents or information or clarifications if they believe that the Form I-829 does not contain all of the evidence required to remove conditions. However, this author has not seen explicitly unreasonable or retaliatory requests from the government to plaintiffs who litigate.
If the new commercial enterprise associated with a conditional resident’s investment does not have a prior I-829 approval, it’s possible that USCIS will conduct a site visit to verify claims in the Form I-829 petition. In these situations, it is important to communicate with the filing attorney and Regional Center to be prepared for this possibility.
In many recent instances, USCIS has modified its policies as a result of the cascade of unreasonable delay litigation that has occurred since the Trump Administration gutted the agency, and setbacks have become common (and unconscionable). We hope litigation here will do the same and get USCIS back to work and adjudicating these cases in accordance with Congress’ intent.
[1] 8 U.S.C. § 1186b(c)(3)(A)
[2] 8 C.F.R. § 216.6(c)(1)
Joseph Barnett
Joseph “Joey” Barnett is a partner at WR Immigration, a full-service immigration law firm, with over a decade of EB-5 experience. He represents immigrant investors seeking permanent residency in the United States through regional centers and direct EB-5 investment. Barnett was named a Top 5 Rising Stars in the EB-5 industry by EB5 Investors Magazine in 2020 and currently sits on the EB-5 Investors Committee of the American Immigration Lawyers Association. Barnett has filed over 50 lawsuits against USCIS and the State Department for unreasonable delay on immigration benefits.
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