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What Exactly Is an I-829 Petition?
The I-829 petition is considered the final phase in the EB-5 immigration process. It is intended to demonstrate to US Citizenship and Immigration Services (USCIS) that the plan outlined in the I-526 petition has advanced positively and that the EB-5 program requirements have been satisfied.
The I-829 petition demonstrates that the immigrant investor satisfied all USCIS standards. When the petition is accepted, the investor’s conditional residency limitation is lifted, and the investor, their spouse, and their unmarried children under the age of 21 can live permanently in the United States.
The I-829 petition can be submitted up to 90 days before the conclusion of the two-year conditional permanent status period. An investor must be aware of the conditional green card expiration date, which is mentioned on the conditional green card they obtained at the start of the EB-5 process. The deadline for filing the I-829 application will be determined by the timeframe specified on the conditional green card.
While the I-829 petition is being reviewed by USCIS, the investor’s conditional residence will be extended. The application must be submitted within 21 to 24 months of the investor’s two-year conditional residency period, or else the investor’s ability to receive a permanent residency card may be threatened.
Completing the I-829 petition correctly and on time will greatly boost the petitioner’s prospects of gaining US permanent status under the EB-5 program. The best practices outlined here can be utilized as a starting point for candidates who are ready to apply to have restrictions removed from their permanent residence status removed.
Provide the necessary documentation.
To successfully file an I-829 petition, the applicant must provide USCIS with many supporting papers as proof that they have satisfied the requirements of the EB-5 program and are eligible for the removal of constraints on their permanent residence status. The Form I-829 instructions on the USCIS website contain a section on the proof applicants must submit. The following are the primary categories:
1. Proof of conditional permanent residency 2. Proof of the investor’s business company, investments, and employment creation
3. Proof for petitioners submitting as a former spouse or as a spouse or child of a deceased investor spouse or parent
4. Evidence of a criminal record
Because each investor’s circumstances are unique, there is no set list of needed papers. The instructions in the sections that follow, on the other hand, might offer an overview of the types of papers to include. If the investment was made through a regional center, the regional center will supply some paperwork, while the individual investor will furnish some.
Work with Regional Centers and Developers.
A successful I-829 petition is the result of a coordinated effort of the EB-5 project sponsors, project developer, investor’s lawyer, and regional center. Tracking numerous crucial data effectively is critical for both developers and regional centers to guarantee a successful petition.
The inputs used in the initial economic model are crucial among the indicators that must be tracked. These inputs include hard and soft expenses, operating income data, and the number of direct and indirect employment produced by the project.
In past submissions to USCIS, tracking measures were not effectively deployed ahead of the I-829 deadline, and submissions were unable to meet the EB-5 program’s job creation standards. Because USCIS adjudicators are aware of this propensity, project teams must prioritize accurate monitoring from the start and maintain detailed cash flow records.
Actual receipts and proof of expenditures, including invoices and other proof of payment, can be used to meet the economic report’s requirements for proving hard and soft costs. Developers must start tracking this as soon as building starts.
In order to establish if the required job numbers have been generated, USCIS will need to understand the income element of the project. USCIS will ideally employ W-2 forms, I-9 information, and financial accounts, preferably audited ones.
The tracking effort for these project teams and their connected regional centers does not end there. Aside from expenditure and income generation, applicants must demonstrate that their EB-5 investment was sustained throughout the employment creation period. IRS Schedule K-1 (Form 1065) offers adequate proof to USCIS that this has occurred. At the regional center level, the team must collaborate with developers and investors to guarantee that a social security number is granted, which is a need for obtaining a form K-1.
Finally, USCIS requires that the investor’s cash be invested in the enterprise at the time of the consular interview. It is the obligation of the regional center and developers to guarantee that this happens. It is critical for the team to ensure that the investor is adequately prepared for the initial consular interview.
Prepare the Individual Investor Documentation Required
First, the investor must demonstrate that they are a lawful conditional permanent resident. They must produce a copy of the front and back of their green card to do so.
The investor must also demonstrate that they have satisfied the EB-5 program conditions, such as job creation and the establishment of a new commercial venture (NCE). While the regional center and developer will give some of the needed documents, direct investors must furnish all of the relevant documentation.
To demonstrate the existence of an NCE, the investor might present documents such as tax returns. The investor must also demonstrate that the business existed during the two-year conditional residency period. State and federal tax returns, quarterly tax statements, bank statements, contracts, permits, receipts, and invoices may be submitted by the investor.
Following that, the investor must demonstrate that the requisite amount was invested as part of the EB-5 program. This can be demonstrated by submitting bank statements, audited financial accounts, or any other proof demonstrating the investor’s cash flow to the NCE.
In addition, the investor must demonstrate that the capital investment resulted in the creation of 10 full-time, EB-5-eligible employment as part of the EB-5 program. Payroll records and tax paperwork, for example, can be used as proof for this stage of the I-829 application procedure.
If an applicant has a criminal record, supplementary documents will be required to offer context to the application. Certain legal papers, such as court records, police enforcement statements, and records of arrest, sentencing, probation, and parole, must be produced in certain cases.
Although each situation is different and the paperwork required may vary, the following information is often requested:
a duplicate of the investor’s green card
Copies of the green cards of the spouse and/or child(ren).
Returns on investment for a business firm. Typically, USCIS will request tax returns from the previous five years.
Evidence of commercial enterprise investment Financial statements or bank statements can be used as proof.
Evidence that the aforementioned business is still in existence. This might be real receipts, bank account statements, or formation paperwork.
Proof of the requisite full-time workers is required both at the start of the investment and when the I-829 is filed. I-9s and paycheck receipts are examples of acceptable documents.
Any pertinent facts about an arrest or conviction
Fees imposed by the USCIS, including a basic government filing cost and a biometrics charge
Understand What to Expect When Filing Form I-829
The current filing address is listed on the USCIS Form I-829 website, under the “Where to File” option menu.
The Check Case Processing Times page lists USCIS processing times. USCIS may occasionally seek more information to assist them in adjudicating the petition. They might also ask for an in-person interview with the candidate. These extra requests highlight the need of developing a highly effective application that is backed by precise tracking from the start.
When an I-829 is authorized, the applicant’s conditional residence status is changed with that of a lawful permanent resident. When this occurs, the investor will be issued a new green card indicating the change in status.
What Happens to an Investor’s Status Following the Filing of an I-829 Petition?
When an application is submitted, USCIS will provide a receipt of filing to each of the parties involved (the main investor and their spouse and dependents). An investor can follow the status of their application using this receipt. This receipt will also certify that the conditional resident status has been extended while the petition is being reviewed by USCIS. Furthermore, this letter will grant the investor employment and travel authorization.
Following the submission of the I-829, USCIS will notify the applicant in writing of the date, time, and place of their biometrics (fingerprinting) appointment. The investor must attend the appointment at the stated time; else, the application may be declined. It is possible to postpone an appointment, but USCIS requires that you follow certain procedures.
Options for I-829 Petition for Failed EB-5 Projects
If an EB-5 project fails, the investor can still get permanent residency through a successful I-829 application. The filing’s success will be determined by the investor’s current immigration status and the extent to which the initial business plan was successful. Investors who have already begun the conditional residency term may still gain I-829 approval. In these circumstances, the investor must demonstrate two things: that the initial EB-5 investment can be sustained, and that the investment has produced or will create the full-time employment required by the EB-5 program within a reasonable time frame.
It is not necessary to demonstrate to USCIS that a viable company has been founded. If the necessary jobs are produced and the application conditions are met, even if only temporarily, the investor should be awarded permanent residency.
If the project fails before the EB-5 standards are met, capital redeployment is a potential alternative for an investor. The redeployment, however, must be done through the NCE rather than the individual investor.
Because the I-829 petition is so important and complicated, investors should consult with skilled immigration counsel while preparing their applications.