Short answer, yes. We just attended the adjustment interview while working with well-known EB-5 lawyer Tammy Fox-Isicoff to obtain an approval. In this case, the foreign national obtained conditional permanent residency through an EB-5 application that ultimately failed. Fortunately, she met a life partner, entered into a good faith marriage with her U.S. citizen husband, and intentionally did not file a Form I-829 so her immigrant status lapsed.
Since the EB-5 program involves a two-step procedure of first getting a two-year conditional green card, the applicant has a lot of pressure to ensure adequate jobs are created when submitting the I-829 application to remove the conditional nature of the green card. This application must be filed during the 90-day window preceding the 24-month anniversary of the card issuance. If the requisite number of jobs have not been created, the I-829 application will ultimately be denied, and the applicant can be placed in removal or deportation proceedings.
This deadline to file a Form I-829, Petition by Investor to Remove Conditions on Permanent Resident Status causes grave concern for this group of people, and sadly, these facts are becoming more common due to the COVID-19 global pandemic and the contraction of the U.S. economy. Last year, in particular, many direct EB-5 investors with smaller businesses have become unprofitable and hiring 10 full-time workers is simply not possible.
While our office has handled hundreds of complex cases, this case is the first one where the alternate option of “switching green cards in the U.S.” has been successful. We have previously been able to send the applicant abroad, surrender the I-829 conditional card, and then process a new green card abroad. However this case represents a first for doing so in the U.S. for our firm.
It therefore appears there is an alternative way to get a new green card if a foreign national has a new basis for adjustment based on an immediate relative petition. In this case, the spouse of a U.S. citizen was able to adjust in Los Angeles and a new conditional green card can be issued, or if the marriage is more than two years old, a full green card is possible.
As a general rule, the Immigration and Nationality Act (INA) bars a conditional permanent resident from adjusting status under INA 245(a). However, in 1991, in Matter of Stockwell, the Board of Immigration Appeals held that INA § 245(d) does not prohibit a foreign national whose conditional permanent resident status has been terminated from adjusting her status under INA § 245(a). Based on that decision, USCIS updated Policy Manual in November 2019 confirming that it may adjust the status of an alien whose conditional status was terminated in certain circumstances.
Here, both the INA and EB-5 regulations state that failure to timely file a Form I-829 results in the automatic termination of the investor’s permanent resident status, providing a pathway for a green card under a new basis for adjustment pursuant to Matter of Stockwell. Of course, the Petitioner must be otherwise eligible for adjustment, and USCIS must retain jurisdiction over the adjustment application (meaning no removal proceedings initiated).
If you would like assistance with your EB-5 case, contact a WR Immigration today.
