By Dillon Colucci, Jennifer Hermansky and Kate Kalmykov
EB-5 filings have grown exponentially in the past few years. Many thousands of EB-5 investors are working their way through the conditional permanent residency process towards the final milestone in their EB-5 immigration process-- I-829 petition approval, which will grant them permanent residency in the United States and the ability to apply for naturalization.
The Form I-829, Petition by Entrepreneur to Remove Conditions, must be filed by an EB-5 investor 90 days prior to the second anniversary of the start of his/her conditional permanent residency. This date tolls from either: 1) the date the EB-5 investor enters the United States on an immigrant visa issued by a consulate overseas or 2) the approval of the Form I-485, Application for Adjustment of Status, from a non-immigrant to an immigrant in the United States.
The I-829 petition submitted to USCIS must satisfy two critical prongs:
- It should demonstrate that the requisite jobs have been created by the EB-5 project or business, as was projected in the business plan and the economic report submitted at the Form I-526, Immigrant Petition for Alien Entrepreneur stage.
- It must prove that the EB-5 investment was sustained in the business for the period of conditional permanent residency and has not been returned to the investor.
Interestingly, the I-829 petition primarily pertains to the business that served as the basis of the EB-5 investment and is not very investor focused. Despite this fact, overseas migration agents or brokers (an “agent”) still play an important role in facilitating this process.
While the project is progressing along its timeline, the agent can assist in providing ongoing communications with investors and their attorneys. Agents should continue to track the project’s progress in comparison to the plan outlined in the business plan. Depending on the size of the project, the agent may want to hire their own auditor or construction monitoring service to make sure the project is moving along the course that was outlined in the I-526 petition. An agent can undertake activities to monitor job creation, review construction schedules, review annual financials of the new commercial enterprise, and perform site visits, if necessary, in order to keep the investor informed of the status of the project. The agent can also obtain regular updates and to advise clients of any delays and problems.
An agent also can serve as an important liaison between an investor’s U.S.-based immigration attorney and the investor themselves. The agent can help keep the attorney abreast of any biographic changes, such as changes of address, which must be reported timely to USCIS until the investor becomes a U.S. citizen. This can be particularly important for investors who have obtained reentry permits and are located abroad at the time the I-829 petition is being prepared. Agents can serve a functional role by interfacing in local time with the investors, assisting with document collection and preparation, and translating any communications for an investor. These activities dove-tail with agents’ ability to maintain a tracking database for each investor, to ensure the I-829 petition is prepared and ready to file during the 90 day period prior to the second anniversary of the start of conditional permanent residency.
The I-829 petition stage is arguably the most important stage of the EB-5 process because it ensures an investor will receive unconditional permanent residency. This is the goal of every EB-5 investor and it is important to recognize the positive role an agent can play in a successful EB-5 experience.
Dillon Colucci is an associate in Greenburg Traurig’s Irvine, California office. In the EB-5 realm, Dillon works extensively with investors, regional centers and developers. Employmentbased immigration cases are the focus of his practices and he works as part of the firm’s dedicated EB-5 team.
Jennifer Hermansky is an associate EB-5 immigration attorney at Greenberg Traurig, LLP in Philadelphia. Attorney Hermansky focuses her legal practice on both family and employment-based immigration matters. She has filed many successful I-526 petitions and numerous I-829 petitions.
Kate Kalmykov is a shareholder at the NYC-area offices of Greenberg Traurig, LLP. Kate handles a range of immigration cases, but is particularly involved in the firm’s EB-5 practice, where she works with investors, regional centers and developers. In addition to providing a full scope of legal services for EB-5 participants, Kate is a respected speaker and regularly blogs on EB-5 issues. She is a founding member of the EB-5 Immigration Coalition.