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.
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.
To successfully remove the conditions on the green card, the following requirements must be met:
When filing Form I-829, the EB-5 investor needs to provide a variety of documents to support their petition, including:
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.
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.
Filing Form I-829 can be complex, and applicants may face several challenges, including:
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.
For more information about the I-829 Form and the EB-5 Immigrant Investor Program, consider consulting the following resources:
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On October 11, the U.S. Citizenship and Immigration Services, (USCIS), the American federal agency that oversees immigration, issued long-awaited guidance about the investment period (known as the “sustainment period”) required for EB-5, America’s residency by investment program.
The guidance stated that investors may receive back their required $800,000 capital after just two years from investing. While many in the EB-5 world have been waiting for USCIS to clarify the sustainment period requirement, the October 11 USCIS policy leaves open many questions, including whether the guidance itself was issued in accordance with proper procedures required under US law.
The official statute regarding EB-5 was updated with the passage of the “EB-5 Reform and Integrity Act of 2022” (the “RIA)” on March 15, 2022. As with the federal agency administering any official statute, USCIS must write formal regulations under a proscribed process. Only after a formal rulemaking process, which requires a public notice and comment process, do regulations become the rules under which the law is administered.
While EB-5 program participants have been asking USCIS to issue guidance and regulations, it is not clear that USCIS has the legal authority to change existing rules unless and until it follows the rule making process. This is especially true in cases where existing regulations can be read as consistent with the new statute, as in the case of the sustainment period.
The cause for this confusion is statutory language in the new law itself. The law requires that the would-be immigrant’s investment “is expected to remain invested for not less than 2 years.” The section of the EB-5 law regarding “removal of conditions”, or when the investor has a permanent green card, was edited to eliminate specific wording that the investor “sustain” the investment. The removal of conditions section, however, allows for an investor to have an extra year, beyond the initial two-year period of conditional residency, to prove job-creation only if they keep their capital invested.
It seems that USCIS interpreted these two provisions to require just two years of active investing. USCIS went further to require that the initial investment remain in the initial project until sufficient jobs have been created. However, the new law also provides for “redeployment” if an initial investment is repaid before an investor is qualified to be repaid.
A requirement to redeploy capital is illogical if the initial investment must satisfy the minimum sustainment period and job-creation requirements. The ability to withdraw capital after just two years seems illogical if the law allows an extra year to prove job-creation only if that capital remains invested for longer. When the RIA is read in its entirety, the new USCIS guidance does not seem to hold up.
The question of when the two-year investing timeline starts is also unanswered. The USCIS guidance indicates that the start date is when the full amount of the investment is “made available to the job-creating entity.” Is this when the EB-5 money is spent? When the loan is closed, but not yet funded? Can the EB-5 funds be deposited and not used by the job-creating entity? How does bridge financing affect this calculation? These are all unanswered questions.
In conclusion, EB-5 project sponsors must structure the EB-5 instrument responsibly, and EB-5 investors should not just rush into a deal that promises money back in two years. For now, it seems safest to maintain the EB-5 investment in the initial project for at least two years after the full amount of the EB-5 funds have been transferred to the JCE/borrower. Investors should stay informed of ongoing developments about the sustainment period, as this issue is sure to come up, again, in courts or USCIS policy in the future. More importantly, no matter what may or may not have changed in the rules, EB-5 investors must evaluate the financial and immigration risks of potential investments thoroughly.
To learn more about the EB-5 Visa program and Peachtree’s EB-5 offerings, contact agreene@peachtreegroup.com.
Each month the US State Department publishes the official Visa Bulletin, which is the source for information on visa availability in the United States. It shows which approved immigrant applicants may move forward to obtain their immigrant visa based on the date the original petition was filed: If your EB-5 petition is approved by USCIS, you go to the Visa Bulletin chart to see if there is a visa currently available for you.
There are 140,000 employment-based green cards available each year, with specific limits for each “preference” category. US immigration law also sets limits on the number of green cards available based on the country of origin. No single country of origin can account for more than 7% of the green cards issued across all family-based and employment-based categories.
Although generally not an issue for most countries, this country-of-origin cap can create backlogs for EB-5 investors from China and India. (Generally, there are not enough EB-5 applicants from Mexico or the Philippines to create backlogs for those countries, which are the only other countries subject to the country-of-origin caps.)
Potential EB-5 participants should refer to the Visa Bulletin to understand whether there are visas immediately available for them after their I-526 or I-526E petition is approved. The chart for EB-5 from the September 2024 bulletin shows the following:
This Visa Bulletin shows there is currently a backlog only for investors approved under the “old” EB-5 program, which was in place before the EB-5 Reform and Integrity Act of 2022 (the “RIA”), effective on March 15, 2022.
However, there is good news for Chinese and Indian pre-RIA investors, as the dates have moved forward from December 15, 2015 to July 15, 2016 for Chinese applicants and from December 1, 2020 to January 1, 2022 for Indian applicants. Investors from China and India who applied under the old program after the cutoff dates listed (July 15, 2016, for China; January 1, 2022, for India) cannot immediately seek to get their visa and move to the United States. They must wait for the listed date to move forward to their petition’s application date, generally known as their “priority date”.
Note it is only the “Unreserved” preference category in EB-5 that shows a cutoff date. The new reserved preference categories for EB-5 all show as ‘C’ or “Current”, meaning anyone who has an approved EB-5 petition related to the new reserved visas created by the RIA can start the process to immigrate to the US, even those from China and India.
Conventional EB-5 wisdom is that the 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.
This 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.
This 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. 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.
The cutoff dates do not move in lockstep with the real-world calendar. The last time the dates changed for China and India were:
The Visa Bulletin dates are calculated by the Department of State based on information they have from USCIS about approved petitions. These charts do not show the impact of petitions that may have been filed before now, but are not, yet, approved.
The Visa Bulletin is the end of the story. To know how long a would-be immigrant might need to wait, it’s important to understand how many petitions might be in process ahead of them.
Think of the Visa Bulletin like a toll plaza on a highway. It lists how long the line is at the toll booth and separates the line for specific countries that have a backlog. However, the Visa Bulletin does not show how many cars are on the highway on their way to the toll plaza. Those are the pending petitions. This information is generally not made public, but there have been efforts by EB-5 industry groups to get this information. We will provide our analysis of this information separately.
Concurrent filing is a mechanism where EB-5 investors already in the United States can send in some forms at the same time as their first Form I-526E application, instead of waiting until that application is approved. With concurrent filing, investors can fill out and send in both their Form I-485 (Application to Register Permanent Residence or Adjust Status) and their Form I-526E petition at the same time.
Generally, this will allow those investors to travel in and out of the United States without any other visa, and to legally work in the United States without any separate employment sponsorship or visa. These investors may receive these benefits while their I-526E petition is pending, NO MATTER HOW MANY PETITIONS MAY HAVE BEEN FILED AHEAD OF THEM.
In our metaphor, this means that it does not matter how many cars are on the highway ahead of you. As long as there is not, yet a line at the toll booth, you may apply for these benefits. Essentially, if you’re here, you can stay here.
Have questions about EB-5, visit our website or contact Adam Greene, agreene@peachtreegroup.com
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ATLANTA (May 28, 2024) – Peachtree Group ("Peachtree") has received its I-956F approval from the United States Citizenship and Immigration Services ("USCIS"), the government agency that oversees the EB-5 Immigrant Investor Program, for the development of a Home2 Suites by Hilton in Boone, N.C.
USCIS adjudicated the I-956F petition for the hotel development in just five months.
"It is a testament to the due diligence of the Peachtree team that it was able to get the project approved so quickly, especially when the published processing time is over 15 months," said Adam Greene, EVP EB-5 for Peachtree Group.
Peachtree originated $21.7 million of fixed-rate construction financing over a five-year term for Narsi Properties to develop a 105-room Home2 Suites by Hilton near downtown Boone. This historic town, situated in the vibrant mountains of western North Carolina, is close to Appalachian State University, its 22,000-plus students and faculty, and numerous other demand generators including three of the most popular ski resorts in the state. The hotel is expected to be completed by Fall 2024.
"Construction is underway, demonstrating tangible progress and reducing initial project risks. Importantly, even as we raise EB-5 capital, Peachtree has bridged the loan, offering certainty of execution for the project and is maintaining an equity stake aligned with the same risk level as our EB-5 investors. This commitment ensures our interests are directly tied to the project's success, reassuring all stakeholders," said Greene.
The EB-5 visa program provides the opportunity for foreign investors to potentially obtain a green card in exchange for making a significant investment in a new commercial enterprise that creates jobs in the U.S. Under the program, foreign nationals who invest a minimum of $800,000 in a U.S.-based project that creates or preserves at least ten full-time jobs for U.S. workers are eligible to apply for permanent residency in the U.S.
"Peachtree Group launched its EB-5 program last year to provide an important financing tool that enables us to continue funding job-creating projects across the country," said Greg Friedman, Peachtree's CEO and managing principal. "This hotel development is expected to create roughly 328 jobs."
About Peachtree Group
Peachtree Group is a vertically integrated investment management firm specializing in identifying and capitalizing on opportunities in dislocated markets, anchored by commercial real estate. Today, the company manages billions in capital across acquisitions, development and lending, augmented by services designed to protect, support and grow its investments. For more information, visit www.peachtreegroup.com.
Contact:
Charles Talbert
678-823-7683
ctalbert@peachtreegroup.com
