By: Joseph Barnett
The Form I-829, Petition by Investor to Remove Conditions on Permanent Resident Status (“Form I-829”) is the final step of the EB-5 process in which the immigrant investor provides evidence of one’s sustained investment and job creation. A Form I-829 must be submitted within the 90-day period immediately preceding the second anniversary of obtaining conditional permanent resident status. Here are five things to know about Form I-829 filings in troubling situations.
1. Regional Center Termination. For those with conditional permanent resident status, the termination of a sponsoring Regional Center’s designation will not result in the termination of the immigrant investor’s immigration status. The EB-5 investor can still file the Form I-829 and get adjudicated with reliance on indirect job creation.
2. Bankruptcy of Job Creating Entity. USCIS has expressed in draft guidance that compliance with the requirement for an EB-5 immigrant investor to continuously maintain his/her capital investment over the two years of conditional residence may still be met in the event of a bankruptcy by the job creating entity. Note, if funds were repaid to a new commercial enterprise through a creditor claim in bankruptcy, USCIS will require an investor to demonstrate redeployment of such capital during the sustainment period in accordance with USCIS’ 2017 policy guidance.
3. Unhelpful Regional Centers or Developers. The Form I-829 requires sufficient documentation to demonstrate that EB-5 (and other) capital has been used for job creation purposes. For inexperienced Regional Centers or developers, or when working with a senior lender without an intercreditor agreement, it may be difficult for EB-5 investors to obtain such documentation that is used as the basis for the I-829 jobs report. It is important to track and account for the spending during the construction process and to obtain accurate operational financials to account for job creation through revenue. It’s advisable for immigrant investors within the same new commercial enterprise to provide consistent information to USCIS to avoid unnecessary issues.
4. Changed Familial Relationships. Derivative family members (counting a former spouse and a child who reached 21 years old or married) can be included in a principal investor’s Form I-829. If a spouse or children are not included on this Form I-829, each dependent must file his or her own petition separately. However, if the principal investor has died, the surviving spouse and children may be included on a Form I-829 together.
5. Seek Review in Immigration Court. An EB-5 investor whose Form I-829 has been denied may seek review of the denial in removal proceedings in front of an immigration judge. A motion to remove conditions can be filed, the immigration judge is tasked with building a new evidentiary record, and no deference to the decision by USCIS should be given. Until an order of removal becomes final, the immigrant investor (and derivative beneficiaries) should be granted temporary Form I-551 stamps authorizing work and travel at a local USCIS office.
