How will the longer waiting time for China-born applicants affect I-829 approval?

There is no clear guidance from USCIS on this important issue given the current immigrant visa backlog for Chinese nationals. Hopefully, it will be issued by year-end. Under current law, you should maintain your investment until after the I-829 is adjudicated.

The China visa number retrogression issue is relatively new, or at least it has not been an issue long enough to affect I-829 processing, yet. In the future, however, this issue could cause problems for EB-5 projects wishing to cash out their investors. The exit strategy originally contemplated by regional centers, developers, and investors will no longer work because the investors must sustain their investments until their conditions are removed. If, for example, a five-year loan is paid back from the job creating entity (JCE) to the new commercial enterprise (NCE), there will be a large number of China-born investors whose conditions have not been removed by that time. According to USCIS's draft memo from last year, the NCE will need to "re-deploy" the investors' capital in order to comply with the EB-5 law requirement that the capital remain "at risk." In your example, if the enterprise fails before your condition is removed, it is possible that USCIS would deny your I-829 petition. There are attorneys ready to litigate this issue and they will argue substantial compliance (i.e., that the EB-5 legal requirements were satisfied because the jobs were created and the investment was sustained for the two-year period). This issue has not yet been resolved, but we will wait for more guidance and information from USCIS so we know what their policy will be going forward with respect to this issue.

Ultimately, the solution is that Congress must increase visa numbers for Chinese nationals so that all applicants are on equal footing. Without increased visa numbers your wait to obtain approval of your conditional lawful permanent residency based upon an approved I-526 EB-5 investor petition could be much longer. We know it is much longer than the published backlog on the Visa Bulletin and it could be 3-4 years or even longer. It is possible, as you suggested, that a non-Chinese could have his conditions removed much sooner and the fact that you are required to maintain the investment and a certain number of employees based upon your investment for a longer period of time could at some point present a problem, particularly as you say, if the enterprise were to subsequently fail. Your best solution there is to make sure you invest in a sound EB-5 project. Finally, I am somewhat cautiously optimistic that Congress will increase visa numbers next year.

I believe that the condition can be removed when, at the time of the I-829 application, the NCE has met all the legal requirements under EB-5 regulation, even if it fails shortly after.

The regulations at 8 C.F.R. - 216.6(c)(1)(iii) can be interpreted to require that an investor's capital contribution and new commercial enterprise be sustained through I-829 adjudication, not just filing; however, this was drafted before we had a Chinese quota-based waiting line. The guidance also states that at the time of I-829 filing and adjudication an investor must have "invested or [be] actively in the process of investing the requisite capital," and "substantially met the capital investment requirement of the statute and continuously maintained his or her capital investment over the two years of conditional residence." Clearly only a two-year period is contemplated. We are waiting for guidance and USCIS has indicated they will issue guidance before the end of the year. We urgently need clarification on this important issue.

USCIS is still working on a policy for "redeployment" of investor funds, which should provide guidance as to what can or cannot be done with EB-5 funding with these long timelines.

Unfortunately, the Removal of Condition application (I-829) can only be filed 1 year and 9 months after you receive your conditional green card. Which means, if you enter 2020 with the conditional green card because you had to wait four years for the visa number availability for China, then you could only file your I-829 in 2022, which is two years longer than investors from other countries. There are some questions and discussions on how long the investment must be maintained for Chinese investors who must keep their investment active until they file the removal applications, but nothing concrete has been announced by USCIS on this. Thus, at this point, you should plan on keeping your investment until at least after the I-829 has been filed just to be safe.