Common Issues in I-829 Processing
Matthew T Galati
The I-829 signals the end of a very long road for an EB-5 investor. After enduring the lengthy I-526 adjudication timeframe, and the complications of adjusting status or receiving an immigrant visa, many investors welcome the prospect of removing their conditions on permanent residence, paving the way for redemption of capital and/or U.S. citizenship.
Meeting the substantive requirements for approval is not the only part of the process that may give investors heartburn. USCIS’ I-829 processing leaves much to be desired. Below are three common issues that USCIS should address as EB-5 petitions continue to grow in volume:
Issue #1: I-829s take so long to adjudicate, it’s illegal.
EB-5 stakeholders frequently lament I-526 and I-924 processing times which oftentimes hold up the deployment of capital to a project. However, the timeframes for I-829s, which are currently pegged at 7.9 month adjudications, are another matter entirely. They violate the law.
To USCIS’ credit, these processing times have improved in the past year. Nonetheless, they’re still illegal. The applicable regulation is unambiguous, providing in pertinent part that USCIS “must either waive the requirement for an interview and adjudicate the [I-829] petition or arrange for an interview within 90 days of the date on which the petition was properly filed.” USCIS’ pattern and practice is to not issue an interview absent indications of fraud or inadmissibility/removability. Thus, investors are entitled to receive decisions (or at least Requests for Evidence) within three months of filing, not eight.
Unfortunately, USCIS’ delays result in an increased (some may argue ultra vires) burden on investors. The regulations require an investor to have must have sustained his/her commercial enterprise, investment, and job creation at the time of I-829 adjudication. Therefore, investors are prevented from redeeming their capital contributions, transforming their businesses, and perhaps investing in other, more productive endeavors for longer than the regulations would allow.
Issue #2: Green cards necessarily expire, complicating international travel and proving Employment Authorization
Form I-829 must be filed within 90 days of the second anniversary of an investor’s conditional permanent residence, evidenced by the expiry date on his/her initial green card. But given the 8-month processing times, every investor’s green card would expire while the I-829 is pending.
So what’s an investor to do? Fortunately, the regulations provide that one’s status is “extended automatically, if necessary, until such time as the director has adjudicated the petition.” In order to evidence this indefinite extension of status, USCIS generates a paper receipt notice for investors and their families which evidences an extension for one year.
This notice can be used to prove employment authorization for the purposes of Form I-9 (see pp. 12-13). However, even though the receipt notice provides proof of status, many human resources personnel unfortunately do not have experience reviewing such documents as part of their new hire process, complicating the onboarding process. The Form I-9 instructions should better address receipt notices used by residents with pending petitions to remove conditional residence.
International travel can also be complicated during the pendency of the I-829. An investor may generally travel and be readmitted with a valid foreign passport, expired Green Card, and valid I-829 receipt notice. However, inexperience on the part of airline personnel or CBP officers can cause headaches. Better training and updated documentation is needed. Too often, clients call describing their difficulties in proving status with the I-829 receipt notices stemming from interactions with government officials and lay persons alike. To these ends, USCIS could alleviate the process by being more explicit regarding international travel on the receipt notices to assist those individuals examining them, especially in the case of dependents’ notices which often do not include travel language.
Issue #3: USCIS Needs to Improve its Ability to Timely, Accurately, and Consistently Generate I-829 Receipts
USCIS unfortunately can be quite disorganized in the issuance of I-829 receipt notices to those investors which have timely filed. Many immigration attorneys have run into difficulties in the receipting process, especially with dependents.
For example, last year I represented a client who timely filed his I-829, but ran into a streak of bad luck with USCIS. It took multiple rounds of e-mails to the EB-5 Inquiries Mailbox and to an adjudicator directly for the Service to issue a receipt notice bearing his spouse’s name, complicating plans to renew her driver’s license and travel internationally. Speaking from personal experience, this has not been an exception to a general pattern: too often USCIS has omitted names from receipt notices, failed to copy attorneys of record on their issuance (and of ASC Appointment Notices – which are needed to track I-829s), or issued receipt notices to some but not all family members.
While USCIS is to be credited for offering accessibility to its officers, it is important to remember that I-829s are really expensive: $3,750 plus $85 per person for biometrics fees. Given this hefty price tag, investors are right to expect better organization and the more consistent issuance of documents.