As many immigration clients now know after the government shutdown, USCIS is a “fee-based” agency, meaning that they process applications submitted with fees for processing. As a result, USCIS continued to operate during the government shutdown. By working with submitted forms, USCIS is able to efficiently gather information that is necessary for processing of an applicant’s request for certain immigration benefits. The two forms that are of chief importance for EB-5 investors are the I-526 and the I-829 forms.
For the first step in the EB-5 process, investors will use Form I-526, “Immigrant Petition by Alien Entrepreneur.” The filing fee for this form is $1,500 and the approximate processing time is four to six months. The form is meant to provide USCIS with information regarding the investor’s EB-5 investment, e.g., details about the commercial enterprise, the amount of the investment, and the employment creation resulting from the investment. Along with the form, investors are required to provide extensive documentation showing that the investment will create at least 10 fulltime jobs for U.S. workers, and that the investment funds were attained lawfully.
After an I-526 petition is approved, investors abroad will move to the next stage—consular processing. At the consular processing stage petitioners who are outside of the United States apply for an immigrant visa at a U.S. consulate overseas. The process involves two different government agencies: the national visa center and a consular office abroad under the Department of State. In order for consular processing to begin, the investor’s I -526 must have been approved, and visa numbers must be available. Investors in the United States process their green card applications by filing an I-485, Application for Adjustment of Status with the USCIS.
At the last stage, the investor must file Form I-829, “Petition by Entrepreneur to Remove the Conditions.” The filing fee for the I-829 form is $3,750 and it usually takes at least six months to process. The form shows that the investor successfully meets all USCIS requirements of the EB-5 program. The investor must submit Form I-829 within 90 days of the two year anniversary of receiving conditional residency status. Once the I-829 is approved, conditional residency restriction is removed so that the investor, their spouse, and their unmarried children under the age of 21 can live in the United States permanently.
Potential EB-5 investors should note that USCIS recently revised the I-526 form. The revised I-526 form has minor changes which differentiate it from the previous version. These changes include space for the petitioner to write in his or her passport number, travel document number, and expiration date. There is also space for the petitioner to write in his or her mobile phone number and email address.
Some might find it interesting that the form still does not require that the investor list the name of his or her dependents, or the regional center under which they are investing into the new commercial enterprise (fund). Frequently, this lack of ability to include dependents on the I-526—as is done with other immigrant applications in other immigrant visa categories—results in delays once the petition is approved. After December 16, 2013 the old version of the I-526 will no longer be accepted, so investors and agents must make sure that they are using the correct version to avoid a kickback from USCIS.