How You Think About the EB5 Visa Country Cap is WRONG! Here's why.
Conventional wisdom states that the EB5 visa country cap is calculated within each preference category, but that thinking is not correct, and we explain why.
Form I-829, Petition by Investor to Remove Conditions on Permanent Resident Status is filed by EB-5 investors to remove the conditions on their two (2) year green cards. The investors obtained the conditional green cards through their investment in a new commercial enterprise. Filing the Form I-829 is a crucial step in the EB-5 investor’s immigration process as once approved it allows the investors, along with their spouses and unmarried children under twenty-one (21), to achieve permanent residency in the United States. In this article, we explore the I-829 Form in detail, covering its purpose, eligibility requirements, necessary documents, filing timeline, common challenges, and practical tips for a successful submission.
Overview of the I-829 Form
Due to the conditional nature of the EB-5 investors’ permanent resident status, between 21 – 24 months after receiving the conditional green card, the EB-5 investors have to file an I-829 EB5 Form with USCIS to remove the condition on their permanent resident status. The EB-5 investors provide documentation to demonstrate they fulfilled the program’s requirements, including proof they sustained their investment and created the required number of jobs. The I-829 form is the final step in the EB-5 investors’ immigration process, and once approved investors become unconditional permanent residents of the United States.
Conditions for Removing Conditional Status
To successfully remove the conditions on the green card, the following requirements must be met:
- Invested Capital: The EB-5 investor must show they have invested or are actively in the process of investing the required capital; and the capital was made available to the business(es) most closely responsible for job creation.
- Sustained Investment: The EB-5 investors must show they have sustained their investment in the new commercial enterprise for two (2) years from the time their investment was made available to the entity most closely responsible for creating the jobs.
- Job Creation: The EB-5 investors must also show at least ten (10) full time positions for qualifying employees have been directly or indirectly created or will be created within a reasonable time. In the case of a troubled business, the EB-5 investors must submit evidence showing the number of existing employees were maintained at no less than the pre-investment level during the period of the EB-5 investors’ conditional permanent residence.
Specific Information and Documents Required
When filing Form I-829, the EB-5 investor needs to provide a variety of documents to support their petition, including:
- Investment Evidence: Proof that the EB-5 investors’ capital contribution has been invested and sustained which may include but is not limited to: financial statements, bank statement, contracts, federal or state income tax returns.
- Job Creation Documentation: The evidence needed to prove job creation is determined by the type of investment, direct or through a regional center.
- The documentation for jobs created indirectly as a result of an investment in a regional center may include, but is not limited to: tax and financial statements, expenditure and revenue reports, construction draws, invoices and receipts, bank statements, quarterly reports etc. In addition, at the I-829 stage, an Economic Impact Report is generally commissioned to evaluate the actual number of jobs created from the construction and operation of the Project selected by the EB-5 investors. This report is generated based on the actual EB-5 eligible costs spent on the Project, as well as the actual revenue generated by the Project. This report is different than the initial Economic Impact Report provided to USCIS with the Form I-956F, Application for Approval of an Investment in a Commercial Enterprise filing as the inputs for calculating the jobs are no longer projections, but actual costs incurred during development of the Project and actual revenue generated during the second or third year of the Project’s operation.
- The documentation of jobs created directly by the new commercial enterprise may include but is not limited to: payroll records, W-2s, employer’s quarterly federal tax returns, Forms I-9s, identification documents of the direct employees or any other evidence showing the required jobs were created or preserved.
- Personal Information: Identification documents, such as copies of the applicant’s passport, green card, and any previous immigration documentation.
Timeline for Filing the I-829 Form
The I-829 form must be file within the 90-day period immediately before the second anniversary of the EB-5 investor’s admission as a conditional permanent resident. Filing early or late may result in complications or even the termination of the EB-5 investor’s conditional permanent resident status, so it is critical to adhere to this timeline.
I-829 Processing Time
The processing time for Form I-829 is listed on USCIS website. During this period, USCIS reviews the I-829 petition, request additional evidence, if necessary, and eventually reach a decision. It is important to note that while the EB-5 investor’s I-829 petition is pending, the conditional permanent residency status is automatically extended for the period indicated on the EB-5 investor’s filing receipt. After filing the I-829 Petition, the EB-5 investor receives a filing receipt notice from USCIS, which should accompany their expired green card.
Common Challenges and Practical Tips
Filing Form I-829 can be complex, and applicants may face several challenges, including:
- Incomplete or Inconsistent Documentation: Ensure that all required documents are complete, accurate, and consistent throughout the petition.
- Prove Job Creation: Demonstrating the investment has created or preserved ten full-time jobs can be challenging, especially in projects that face delays or other complications. The EB-5 investor who select to invest in one of Peachtree Group’s projects should be assured that all the project related documents necessary for their Form I-829 filing are collected, reviewed and assembled into an I-829 Template by Peachtree. The I-829 Template will be provided to our EB-5 investors well in advance of their 90-day filing window.
- Meet the Filing Deadline: Missing the 90-day filing window jeopardizes the chances of removing the conditions on the green card.
Practical Tips for a Successful Submission
- Start Early: EB-5 investor should begin gathering the necessary documentation well in advance of the filing deadline to ensure that everything is in order.
- Consult with Experts: EB-5investors should work with their immigration attorneys and consultants experienced in the EB-5 process to prepare their petition and provide guidance. If you don’t have an immigration attorney, Peachtree Group can recommend several that have collaborated with us in the past.
- Double-Check All Information: Review form and documents for accuracy and consistency before these are submitted to USCIS.
- Stay Informed: Keep up to date with any changes in immigration laws or USCIS policies that could affect the petition.
Frequently Asked Questions
What is the I-829 Form?
The I-829 Form is a petition filed by EB-5 investors to remove the conditions on their permanent resident status. It is the final step in the EB-5 process, allowing investors to obtain an unconditional green card if the EB-5 Program's requirements are met.
How Do I Fill Out the I-829 Form?
To fill out the I-829 Form, the EB-5 investors must provide personal information, details about their investment, and evidence they have sustained the investment and created the required number of jobs. The I-829 Filing is a voluminous filing, containing numerous exhibits which generally include financial statements, tax returns and bank statements for numerous years, as well as constructions draws, expenditure reports, revenue repots and a job creation analysis, encompassing thousands of pages of supporting documents.
Why Do You Need to Fill Out the I-829 Form?
Filling out the I-829 form is necessary to remove the conditions on the EB-5 investor’s green card. if this petition is not filed, the conditional resident status will expire, and the investor will lose the ability to become a permanent resident of the United States.
What Happens After the I-829 Form is Approved?
Once the I-829 Form is approved, the EB-5 investor, their spouse, and their unmarried children under 21 become permanent resident of the United States of America. This status grants EB-5 investors many rights and privileges, including the ability to live and work in the United States, to own property, attend public school and colleges, and be protected by the laws of the United State and of the State where the EB-5 investors reside.
Additional Resources
For more information about the I-829 Form and the EB-5 Immigrant Investor Program, consider consulting the following resources:
- USCIS Website: Access official forms, instructions, and updates on processing times.
- A Simple Guide to EB-5 Immigration by Investment
- Immigration Attorneys: Seek legal advice from professionals specializing in EB-5 cases. If you are not familiar with an immigration attorney, contact Peachtree Group, our team can give you contact information for several knowledgeable lawyers.
- Contact Peachtree Group: Contact Peachtree Group for guidance on specific investment opportunities and compliance requirements.
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Conventional wisdom states that the EB5 visa country cap is calculated within each preference category, not across all preference categories. That would mean that no one country could have more than 7% of just EB-5 visas in any reserved visa category.
Conventional EB-5 wisdom on country caps is wrong.
In a US Federal Register announcement dated March 28, 2023, the US Government acknowledged they were calculating country caps incorrectly and outlined how country caps were to be calculated moving forward.
Since April 2023, country caps are calculated based on the total number of visas available in ALL preference categories including family-based and employment-based. Immigrants from a particular county are not subject to a country cap until applications for ALL preference categories for that country reach 7%.
Once both family-based and employment-based visa applications for a particular country reach 7%, the Department of State imposes backlogs for that particular country in each preference category based on priority dates across all categories.
Investors born outside of China and India can confidently choose between either a rural or high unemployment project.
The Visa Bulletin shows China, India, Mexico, and the Philippines have all reached the 7% cap across the family-based and employment-based visas. Since Mexico and the Philippines are not big users of the EB-5 preference, China and India are currently the only countries subject to a country cap on EB-5 unreserved visas. What this means: If you were born outside of China or India, you don't need to worry about backlogs or waiting lines whether you invest in a rural or high unemployment TEA. Unless and until another country reaches the 7% quota across all preference categories, we should not expect there to be a backlog for those countries in EB-5. If you were born in China or India, you should speak with knowledgeable EB-5 professionals to understand the potential waiting periods. However, remember that your EB-5 investment decision should be based on all of the factors that are important to you, not just the potential visa quotas.
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USCIS Form I-485 for EB-5 Investors Explained
Learn how EB-5 investors can leverage the I-485 form to adjust their immigration status, the eligibility requirements for EB-5 investors, the essential documents needed, and how Form I-485 fits into the overall EB-5 process.
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Form I-485, or the "Application to Register Permanent Residence" allows an EB-5 investor to adjust their investor's status from a non-immigrant to a conditional permanent resident (CPR). To take advantage of this, the EB-5 investor must already be in the United States lawfully on a non-immigrant visa such as a F-1 or H-1B. The form is generally filed after the I-526E Petition which is the first step in the EB-5 visa process. This blog post explains how the Form I485 fits into the overall EB-5 process, the essential documents needed, and how to avoid potential delays in the adjustment of status journey.
Concurrent Filing
The passing of the EB-5 Reform and Integrity Act of 2022 (“RIA”) allowed EB-5 investors to file Form I-485 concurrently with Form I-526E if visas are available. This is called concurrent filing and allows investors to remain in the US while their application is processed. In short, if you are in the U.S. you can stay in the U.S. while you wait for the adjudication of your Form I-526E Petition.
Conditional Permanent Residency
Once the I-485 is approved, the investor becomes a conditional permanent resident which is good for two years. During this time, they need to fulfil the promise they made with the I-526 form to invest in a project that creates US jobs. In order to remove the conditional and become a permanent resident, the investor must file Form I-829 or the "Petition by Investor to Remove Conditions on Permanent Resident Status". Once this is granted, the investor and their eligible family members receive permanent green cards.
Investor Benefits During I-485 processing:
While the I-485 is processing, EB-5 investors may also file a Form I-765, "Application for Employment Authorization" and Form I-131, "Application for Travel Document" to receive an employment authorization and travel permit, which allows them to work in the US and travel while their applications are pending.
I-485 Filing Requirements: Documents to be submitted with your Form I-485
Peachtree Group encourages ourEB-5 investors to consult with their immigration attorney and to read through the Form I-485 form instructions as the specific evidence required with theForm I-485 application may vary depending on the immigrant category you are filing under.
Documents required to be submitted with your Form I-485 include:
- Passport-style photographs
- Government-Issued identity document with photograph
- Birth Certificate
- Inspection and Admission or Inspection and Parole
- Passport page with admission or parole stamp;
- Passport page with nonimmigrant visa; and
- FormI-94 Arrival-Departure Record.
- Evidence of Maintenance of Status
- Original Sealed Medical Exam Results (FormI-693)
I-485 EB5 Filing Costs
As November 2024, the filing fee for Form I-485 is $1,440. The EB-5 investor pays additional filing fees if they are also filing Form I-765 and Form I-131. Be sure to check the USCIS website for the most up to date fee information. In addition, this site has information on what to do while you wait for your green card application.
Prevent unnecessary delays in the adjudication of Form I-485
By following the I 485 form instructions and submitting all the required evidence and supporting documentation at the time of the Form I-485 filing, EB-5 investors may avoid receiving a Request for Evidence (“RFE”) from USCIS.
Tips to prevent receiving an RFE include:
- Form I-693, Report of Immigration MedicalExamination and Vaccination Record
- Only a USCIS designated civil surgeon can perform this medical examination in the United States. The civil surgeon will document the results of the examination on Form I-693. USCIS considers a complete Form I-693 to remain valid for two years from the date the civil surgeon signs the form.
- Due to the limited time validity of Form I-693, EB-5 investors are not required to submit Form I-693 at the time they file their adjustment application but may select to do so in order to avoid a RFE and delay the adjudication process. USCIS cannot approve the Form I-485 without having the report of Immigration Medical Examination and Vaccination Record, so if the Form I-693 is not filed with the adjustment of status, USCIS will have to issue an REF to obtain the medical report.
- File all required initial evidence and supporting documentation as described in the form instructions; and
- Use the current edition of Form I-485
Additional Resources
For more information about the I-526E Form and the EB-5 Immigrant Investor Program, consider consulting the following resources:
- USCIS Website: Access official forms, instructions, and updates on processing times.
- A Simple Guide to EB-5 Immigration by Investment
- Immigration Attorneys: Seek legal advice from professionals specializing in EB-5 cases. If you are not familiar with an immigration attorney, contact Peachtree Group, our team can give you contact information for several knowledgeable lawyers.
- Contact Peachtree Group: Contact Peachtree Group for guidance on specific investment opportunities and compliance requirements.
- Learn more about the Peachtree Advantage
- What is form I-526E for EB-5 investors?
- What is Form I-826 for EB-5?
What is Form I-526E for EB-5 Investors?
Form I-526E is the first petition filed by a foreign investor seeking to secure U.S. permanent residence through an investment. It is the investors promise to fulfill the requirements of the EB-5 program.
Form I-526E, also known as the "Immigrant Petition by Regional Center Investor," is the first petition filed by a foreign investor seeking to secure U.S. permanent residence through an investment in a new commercial enterprise associated with a USCIS-designated regional center. This blog post will provide a guide to Form I-526E, including an overview, documentation required for filing the petition, instructions for completion, costs, processing times, and how Peachtree Group can assist you throughout the application process. This is slightly different than a I-526 form, which is an "Immigrant Petition by Standalone Investor." You can read more here about the two different forms.
Overview of Form I-526E: Your promise to fulfill the requirements of the EB-5 program
The I-526E form is the initial petition filed by an individual seeking an EB-5 visa. This form is submitted to the U.S. Citizenship and Immigration Services (USCIS) and is designed to demonstrate the applicant has made or is actively in the process of making a qualifying investment in a new commercial enterprise (“NCE”) associated with a USCIS -designated regional center, which will benefit the U.S. economy by creating ten (10) full-time jobs for U.S. workers. Approval of the I-526E petition is a crucial step in obtaining an EB-5 visa, which grants the investor and their immediate family members conditional U.S. permanent residency.
In short, Form I-526E is your promise to fulfill the requirements of the EB-5 program.
Evidence to Accompany your Form I-526E Petition
Given the complexity of the Form I-526E application, we advise our EB-5 investors to engage immigration attorneys with EB-5 experience to assist them with the preparation and filing of their I-526E Petition.
Filling out Form I-526E involves several steps, each requiring careful attention to detail. Generally, these steps are done by the EB-5 investor’s immigration attorney. Using the latest version of Form I-526E from the USCIS website, attorneys need the investors to provide personal details, including full name, date of birth, nationality, mailing address, physical address for the past five (5) years, employment history, as well as information about the EB-5 investor’s spouse and children.
The Form I-526E also requires information about the Regional Center and the project application. Peachtree Group provides that information as part of the I-526E Template prepared forEB-5 investors in each of our projects.
Form I-526E also asks for information about the investment. EB-5 investors provide details about the investment amount, the composition of their investment and the source of the invested funds. The EB-5 investors must submit documentation proving the investment funds have been lawfully obtained. In addition, Form I-526E asks for information about visa processing, immigration proceedings, as well as bonafides of persons involved with the Regional Center Program.
Unlike the I-526 Petitions filed before the EB-5 Reform and Integrity Act of 2022 (“RIA”), when the petitions included the offering documents, project related documents and the investor specific documents, I-526E Petitions filed post RIA are mainly comprised of documentation of the EB-5 investors’ lawful source of capital.
The typical documents filed with Form I-526E Petition includes:
1. Investment in a USCIS-designated Regional Center: Post RIA, Regional Centers must file a Form I-956F, Application for Approval of an Investment in a Commercial Enterprise before any EB-5 investors can file their Form I-526E Petitions. As evidence of an invest in a new commercial enterprise for which the Regional Center has filed a Form I-956F, the EB-5 investors should provide a copy of the Receipt Notice or the Approval Notice received from USCIS for the Form I-956F filing. Peachtree Group is providing the Receipt Notice or Approval Notice as part of the I-526E Template petition prepared for the EB-5 investors in each of our projects.
With the Form I-956F filing, Peachtree, through the Regional Center, provides USCIS the full package of the offering documents, the business plan, economic impact report, Regional Center designation letter, as well as numerous other project related documents.
Please note: USCIS specifically asked during one of their engagements not to resubmit the documents filed with the I-956F, but to include the Receipt Notice with the investor’s Form I-526E Petition.
In addition, in Part 4, Information About Your Regional Center and Project Application of the FormI-526E, the EB-5 investors are supposed to provide specific information about the filed Form I-956F, the Regional Center, the NCE and the project, which allows USCIS to associate their I-526E filing with the Form I-956F filed for the project they selected for their EB-5 investment. Peachtree is also provides this information with the Sample Form I-526E, part of the I-526E Template petition.
2. Investment: The EB-5 investors must provide evidence they have invested or are actively in the process of investing the required amount of capital. The EB-5 investors must invest $1,050,000 or $800,000 if the investment is made in a project located in a rural or high unemployment targeted employment area (“TEA”) or an infrastructure project.
The NCE is a for-profit organization formed in the United States after November 29, 1990 for the ongoing conduct of lawful business that receives, or is established to receive, capital investment from immigrant investors. Such evidence may include but is not limited to, copies of wires, bank statements showing amounts deposited into the separate account established for the NCE, evidence of monies transferred or committed to be transferred to the NCE in exchange for shares of stock that cannot be redeemed at the holder’s request, or any loan or mortgage agreement, promissory note, security agreement, or other evidence of borrowing that is secured by assets owned by the EB-5 investors (other than those of the NCE) and for which the EB-5 investors is personally and primarily liable.
3. Lawful Capital: TheEB-5 investors must provide evidence the capital they have invested or are actively in the process of investing, as well as any funds used to pay administrative costs and fees, were obtained through lawful means.
Such evidence may include but is not limited to:
- Foreign business registration records
- The investors’ tax returns filed within the last seven years in or outside the United States
- Evidence of other sources of capital.
- If the investment funds were gifted or borrowed, the EB-5 investor must submit evidence from the donor or, if other than a bank, the lender demonstrating that such funds were obtained through lawful means and that the funds were gifted or loaned in good faith and were not gifted or loaned to circumvent any limitations imposed on permissible sources of capital, including, but not limited to proceeds from illegal activity.
I-526E Processing Time and Costs
I-526E Processing Time: At the time of this publishing, USCIS has yet to publish their processing time for the new Form I-526E. Invest in the USA (“IIUSA”), the industry trade association for the EB-5 Regional Center Programs, has recently published an analysis of data collected from the EB-5 industry and concluded that the I-526E Petitions associated with a project located in a rural TEA were approved in 10 months on average, with a normal range of 6 to 15 months, while I-526E Petitions associated with a project located in a high-unemployment TEA were approved in approximately 14 months on average, with normal range of 11 to 16 months.
Cost: As of November 2024, the I-526E filing fee is $11,160. If the EB-5 investors are filing their initial Form I-526E on or after October 1, 2022, they must include a separate fee of $1,000 as required by RIA. Be sure to check the USCIS website for the most up to date fee information.
How Peachtree Group Can Help
Navigating the EB-5 application process can be complex. Peachtree Group offers comprehensive support to investors throughout the I-526E petition process, including:
- Consultation and Guidance: Provide expertadvice on qualifying investments and ensuring compliance with EB-5 regulations.
- Document Preparation: Assist in gatheringand preparing necessary documentation to support the EB-5 investor’s I-526E Petition.
- Tracking and Updates: Help monitor theprogress of the EB-5 investor’s petition and provide updates on any changes
Frequently Asked Questions
What is the I-526E Form?
Form I-526E is an application used by foreign nationals pooling their investment with one or more qualified immigrants participating in the Regional Center Program to petition for an EB-5 visa. It demonstrates that the investor has made or is in the process of making a qualifying investment in a new commercial enterprise and meets the program’s requirements for obtaining conditional U.S. permanent residency.
What Do I Need to Fill Out an I-526E?
EB-5 investors must provide personal identification information, details about the investment amount and enterprise, evidence of the lawful source of investment funds.
What Happens After the I-526E Form is Approved?
Once Form I-526E is approved, the next step is consular processing or adjustment of status. If you are outside the U.S., you will attend a visa interview at a U.S. embassy or consulate.
If you are already in the U.S., you can concurrently file for adjustment of status with your Form I-536E Petition. After obtaining an EB-5 visa, you and your immediate family members can become conditional permanent residents, with the conditions removed upon proving that the investment has met the program requirements.
By understanding the Form I-526E Petition, you will be well-prepared to start navigating the EB-5 application process successfully. If you need assistance, Peachtree Group is here to provide expert support and ensure your application is filed accurately and efficiently.
Additional Resources
For more information about the I-526E Form and the EB-5 Immigrant Investor Program, consider consulting the following resources:
- USCIS Website: Access official forms, instructions, and updates on processing times.
- A Simple Guide to EB-5 Immigration by Investment
- Immigration Attorneys: Seek legal advice from professionals specializing in EB-5 cases. If you are not familiar with an immigration attorney, contact Peachtree Group, our team can give you contact information for several knowledgeable lawyers.
- Contact Peachtree Group: Contact Peachtree Group for guidance on specific investment opportunities and compliance requirements.
- Learn more about the Peachtree Advantage
- USCIS Form I-485 for EB5 investors Explained
- What is Form I-826 for EB-5?