EB-5 Visa Blog

I-829 Processing Woes Continue

Matthew T Galati

During the last fiscal year, we wrote about USCIS’ problems with I-829 processing. Unfortunately, our experience with filing I-829s this brief fiscal year gives us reason for continued pessimism, especially as it relates to the timely and consistent issuance of receipt notices.

Consider two recent filings we made on behalf of investors and their families, each of whom filed their petitions following successful I-526 adjudications with two of the industry’s most reputable regional centers. The first case, filed in October, involved the investor, his wife, and two children. Inexplicably, USCIS sent our firm the receipt notice for one of the children, and nothing further. The investor received notices relating to his wife and other child. No notice was generated for the investor himself! We accordingly inquired with the USCIS Immigrant Investor Mailbox. Despite the form reply that the IPO “received your message and will respond within 15 calendar days,” no reply was received and an additional inquiry was made. Only then was the problem acknowledged by USCIS and a replacement (see below why this is problematic) receipt notice was received.

Two months later, we filed another I-829, again with one investor and three dependents. Conversely the investor’s receipt notice was duly received approximately a week after filing. Three days later, the investor’s son’s receipt notice arrived. But the other two did not until another follow-up.

Unfortunately, our anecdotal experience (acquired through years of practicing at Greenberg Traurig and in other firms before) would suggest that such disorganization on the part of USCIS is not unique to these two cases. It would seem, at least to us, that at least one problem with the I-829 receipting process is to be expected.

For those practicing other areas of immigration law, receipt notices which “trickle in” may be nothing new and might appear to be a trivial matter. However, in the context of I-829 adjudication, this inconsistency presents far more significant problems:

  • Proof of ongoing Lawful Permanent Resident Status is necessary for employment, international travel and some state law benefits – Once an investor’s or dependent’s green card expires, that person is left without evidence of being in lawful status which is necessary to prove work authorization, board an international airplane, or present oneself for entry into the United States. Because processing times are so long, every I-829 filer will have his/her green card expire. The I-829 receipt notices address this problem by providing proof of extension of status for a period of one year.

Investors that have not received their notices can alleviate this problem by one of two ways. First, as referenced above, one can inquire with the IPO mailbox. However, in our experience, responses are not always timely. Furthermore, another issue is that only replacement notices are received which look far “less official” than the green stock in which I-829 receipts are normally printed. What is an airline agent charged to examine for travel eligibility to think in cases where a family presents two different types of notices, one printed on paper with inherent security features and the other on what appears to be general office paper?

The second way is to make an INFOPASS appointment at a USCIS field office and ask for a temporary I-551 stamp in a passport. Unfortunately, in our experience, INFOPASS appointment slots are most often only sparingly available, including blackouts for weeks at a time. The additional hassle is that the investor/dependent generally needs to appear in person with his passport and explain to a front-line USCIS officer (who other than this encounter would probably not have any EB-5 experience) why the stamp is necessary. Such officers are vested with the discretion to issue stamps and/or limit their duration, leading to divergent experiences.

Unfortunately, many investors needing to prove status for travel/employment purposes, or perhaps to apply for benefits such as a driver’s license renewal, may need to rethink their plans if they cannot receive their I-829 receipt notices or I-551 stamps timely.

  • I-829s are really expensive, and applicants deserve better. Currently, I-829 filings cost more than twice the cost of I-526s, at a whopping $3,750, plus biometrics fees per each applicant. With such a hefty pricetag, one would think that USCIS would have plenty of funds to create a system which issues receipt notices more uniformly and accurately, and avoid the headaches for investors and counsel described above.
  • An I-829 tsunami is coming, and unless receipting improves, the problems are likely to be exacerbated. EB-5 popularity and visa usage has skyrocketed in recent years. Consider that in FY 2014, 2,516 I-829s were filed -- whereas 10,928 I-526s were filed! If USCIS cannot consistently issue receipt notices for such relatively modest demand today, how can it possibly handle a five-fold increase in filings that will come once present cases reach the I-829 stage?

So what’s to be done? With these two specific cases as evidence, we plan to shortly bring this attention to the USCIS Ombudsman. We encourage others having similar experiences to do the same. Hopefully regular stakeholder calls will also present an opportunity for USCIS IPO officials to address these issues directly with the constituency as well. Hopefully these problems will be abated in the future.

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