Delays in I-829 Approval Continue to Cause Issues for EB-5 Applicants

United States Citizenship and Immigration Services (USCIS) has issued a new Policy Alert updating the USCIS Policy Manual  to make some meaningful changes to the documentation required for conditional residency provided by USCIS to EB-5 applicants with pending I-829 petitions. The new alert says that any EB-5 investor with conditional residency will be required to file an I-829 petition to remove the conditions of their residency. This  filing must be completed within 90 days of the expiration of the two-year conditional residency status. A

After an I-829 is filed, USCIS will issue receipt notices to a given EB-5 investor, as well as dependent family members, provided the I-829 petition has been properly filed. This receipt notices evidence continuing the relevant parties’ conditional residency status for a further year after the expiration of initially issued conditional residency cards. At this point the I-829 petition is expected to be adjudicated or an order or removal will become final. This new guidance in the Policy Alert is expected to be reaffirmed in Volume 6, Part G of the USCIS Policy Manual.

Our experience is that USCIS has seen significant delays in issuing I-829 receipt notices, largely due to a recent system conversion at USCIS offices.

Anyone seeking an EB-5 visa should take notice of this development as they prepare to file their I-829 petitions. For EB-5 applicants looking to travel abroad,  the original I-829 receipt notice and expired CPR card must be presented to the Customs and Border Patrol officer in order to gain reentry to the United States.

With this in mind, we suggest that any EB-5 applicant be sure to plan in advance to file their I-829 petition as soon as possible, upon opening of the 90 day filing window. It is also important that applicants be present in the US before conditional residency status expires until the receipt notice is received, and be thoughtful about scheduling trips abroad only after receiving the I-829 receipt notice

Furthermore, EB-5 investors and dependent family are also required to obtain biometrics prior to the adjudication of their I-829 petition. Notices for these biometric sessions are generally issued after the I-829 receipt notice has been issued. As a result of existing system delays, appointments with the USCIS Application Support Centers (ASC) who handle these appointments, can be delayed 90 days or more.

If the I-829 petition is not adjudicated within the one year of validity of the receipt notice, which is likely given the current delays, an EB-5 investor is required to obtain I-551 stamps in their passport in order to prove their continuing conditional residency past the expiration date of their receipt notice.

Scheduling of appointments to obtain an I-551 stamp must be scheduled through a local USCIS field office. This can be done via the USCIS InfoPass website.

Even with all of these steps properly completed, it is possible that an EB-5 investor and dependent family members may not obtain I-551 stamps quickly enough to ensure that they do not lapse. In this situation these applicants will be required to wait until thier I-829 petition is approved or a final order of removal is issued.

With these significant delays continuing to cause issues, we suggest that anyone pursuing an EB-5 visa ensure that they have the guidance of an experienced lawyer.