By Kristal Ozmun
An immigrant investor who is a conditional permanent resident (CPR) must file form I-829, Petition by Investor to Remove Conditions on Permanent Resident Status within the 90-day window preceding the two-year anniversary of the immigrant investor’s conditional permanent residence to, as the form implies, remove the conditions on his or her permanent residence. An immigrant investor’s spouse and dependent children may be included in the form I-829 filing. A divorced spouse may still be included in the immigrant investor’s I-829 petition; he or she may also file a separate I-829 petition. The same applies to children over the age of 21. A widow or widower of an immigrant investor and any dependent children may file form I-829 on the basis of the deceased immigrant investor’s qualifying investment.
At present, form I-829 is filed at the Immigrant Investor Program Office in Washington, D.C. The current reported processing time is 24.5 months to 47.5 months. During the pendency of the I-829 petition, the immigrant investor and his or her dependents remain CPRs. The form I-829 receipt notice serves as evidence of CPR status for 18 months. An immigrant investor and his or her dependents can secure I-551 stamps as evidence of continued CPR status during form I-829 pendency via InfoPass appointments at local USCIS field offices.
An I-829 petition has three primary requirements for approval: it must show that the immigrant investor made a qualifying investment, that he or she sustained his or her investment in the new commercial enterprise (NCE), and that the investment created or can be expected to create at least ten jobs within a reasonable period of time. We discuss these requirements in turn below.
An immigrant investor must submit evidence that he or she made or was actively in the process of investing the requisite amount of capital in an NCE. In practice, this generally means submitting evidence previously submitted with the immigrant investor’s I-526 petition such as personal bank statements, wire transfer application and confirmation, and receipt confirmation letter from the NCE bank. If the NCE subsequently loaned or invested the immigrant investor’s capital in a job creating entity (JCE), the immigrant investor must present evidence of this transaction and the path of funds with his or her I-829 petition. This evidence typically includes both NCE and JCE bank account statements showing the NCE’s receipt of capital, transfer to the JCE and receipt by the JCE.
An immigrant investor must sustain his or her investment in a NCE to obtain legal permanent resident (LPR) status. Historically, U.S. Citizenship and Immigration Services (USCIS) interpreted the sustainment period to extend from the date of I-526 petition submission to the date of form I-829 adjudication. In June 2017, USCIS, in a subsection entitled “Sustainment of the Investment,” revised its policy manual to limit the sustainment period to the first two years of CPR status stating:
“The sustainment period is the investor’s 2 years of conditional permanent resident status. USCIS reviews the investor’s evidence to ensure sustainment of the investment for 2 years from the date the investor obtained conditional permanent residence. An investor does not need to maintain his or her investment beyond the sustainment period.”
The USCIS policy manual necessarily reflects agency policy as opposed to law as set forth in statutes, regulations, and precedential cases. However, the June 2017 policy reinterpreting the sustainment period is supported by the applicable immigration statute and regulations. Thus, while an immigrant investor must show sustainment of his or her investment at the time of a form I-829 filing, he or she should feel confident receiving a return of this investment after completion of the two-year CPR period. An immigrant investor generally demonstrates that he or she has sustained his or her investment by submitting schedules K-1 of form 1065, U.S. Return of Partnership Income, of the NCE for each year following his or her qualifying investment through the conclusion of the CPR period.
JOB CREATION FOR I-829
An immigrant investor must also show that his or her investment created at least ten jobs or can be expected to create at least ten jobs within a reasonable period of time. In the case of a troubled business, an immigrant investor must show that his or investment enabled the business to maintain the pre-existing level of employment. Evidence submitted in support of job creation in the I-829 petition will depend on whether the investment was sponsored by a regional center, and the economic multiplier(s) used to predict job creation in the immigrant investor’s I-526 petition, if any.
An immigrant investor whose investment is not sponsored by a regional center must rely on direct job creation. This means the NCE must employ at least ten full-time U.S. workers per immigrant investor. “Full-time” means at least 35 hours per week; “U.S. workers” includes U.S. citizens, permanent residents and other authorized workers but excludes immigrant investors, their sons, daughters, and spouses and all nonimmigrant workers. Direct job creation is evidenced by W-2s, I-9s, payroll records and state tax filings.
An immigrant investor whose investment is sponsored by a regional center can rely on indirect job creation in addition to direct job creation. Indirect jobs are those created as a result of the qualifying investment due to increased demand in the regional economy. For example, jobs created at a lumber yard due to the purchase of lumber for the EB-5 capital investment project. Indirect jobs are documented through use of “reasonable methodologies” such as “multiplier tables, feasibility studies, analyses of foreign and domestic markets for the goods or services to be exported, and other economically or statistically valid forecasting devices which indicate the likelihood that the business will result in increased employment.” In practice, “reasonable methodologies” are usually economic models such as RIMS II, IMPLAN, and REDYN, which document employment by applying economic multipliers to inputs including expenditures, revenues, and employees of an EB-5 capital investment project. Indirect jobs are documented by evidence of these inputs such as construction draws and accompanying evidence, audited financial statements and I-9s together with the accompanying economic report.
An immigrant investor in a troubled business must show that his or her investment enabled the troubled business to maintain its preexisting level of employment. For example, if a troubled business employed 50 persons prior to a qualifying EB-5 investment, the immigrant investor must present evidence of 50 employees with his or her I-829 petition, not just ten. The evidence presented typically mirrors that submitted with a non-regional center-based investment: I-9s, W-2s, payroll records, and state tax filings. However, if the NCE was also sponsored by a regional center, the petition would also include an economic report showing indirect job creation using “reasonable methodologies.”
Importantly, if the qualifying EB-5 investment created at least ten jobs within the immigrant investor’s CPR period, then the immigrant investor satisfies the job creation requirement even if those jobs are no longer in existence at the time the immigrant investor files form I-829. Moreover, if the qualifying EB-5 investment did not create at least ten jobs by the time an immigrant investor files his or her form I-829, he or she can demonstrate job creation within a reasonable period of time. “Reasonable period of time” is defined as one year after completion of an immigrant investor’s CPR period. Generally, an immigrant investor must present evidence explaining the absence of timely job creation, such as force majeure or the like, and a new, tenable timeline for job creation within the requisite one-year period. An immigrant investor relying on the one-year, reasonable period of time exception should expect to receive a request for evidence from USCIS requesting evidence of the requisite job creation at a later date.
FINALIZING THE PROCESS FOR I-829
In sum, USCIS will remove the conditions on an immigrant investor’s permanent residence upon a showing that he or she made and sustained an investment in a NCE or troubled business, as the case may be, and that investment created at least ten jobs or enabled a troubled business to maintain its preexisting level of employment. Significantly, an immigrant investor might still make these showings even if the EB-5 capital investment project ultimately fails and he or she does not receive a return of his or her qualifying investment.
Read about the next step in the EB-5 process: Naturalization