Filing for Removal of Conditions on Permanent Residency

EB-5 visa petitioners must satisfy a number of conditions in order to obtain the permanent residency benefit that the category affords. These requirements include investing at least $1,000,000 in a U.S. business (or $500,000 if the business is located in a targeted employment area (TEA)), and ensuring the creation of at least 10 jobs. Applicants are not granted permanent residency until they can demonstrate that they have met the EB-5 requirements.

After your Form I-526 is approved, you will need to submit a Form I-485, if you are currently in the U.S., or obtain an EB-5 visa at a U.S. consular office abroad, if you are abroad at this time. If your I-485 is approved or you enter the country with an EB-5 visa, you will be granted conditional permanent resident status for a two-year period. However, because this status is conditional, you might lose it if you do not fulfill your obligations as established under the EB-5 category. This article will discuss the process and requirements for removing the conditions on your permanent resident status.

(For a more detailed overview on obtaining conditional permanent resident status through the EB-5 process, click here and here.)

Removing Conditions

In order to get the conditions on your permanent residency removed, you must submit Form I-829, along with evidence that you have met the requirements for EB-5 investment. These requirements vary depending on the type of investment: a new commercial enterprise (NCE), a troubled business, or a regional center. The requirements for each investment type are listed below:

New Commercial Enterprise

  • Evidence that you created an NCE by submitting copies of the business’s organizational documents, federal tax returns, etc.
  • Evidence that you have invested the total amount of required funds
  • Evidence that you have sustained your investment in the NCE throughout your two-year period of conditional permanent residency by submitting: business invoices and receipts, bank statements, contracts, copies of federal or state income tax returns, quarterly tax statements, audited financial statements, contacts, business licenses, or any similar evidence
  • Evidence documenting the number of full-time employees at the beginning of your investment and at present by submitting tax Form I-9 for all employees, other tax documents, payroll records, etc. This requirement serves to show that the enterprise created 10 full-time jobs within two years of the underlying I-526’s approval.

Troubled Business

Those who invest in a troubled business must submit the same evidence listed above under the NCE category except the investor can choose to prove that at least 10 existing jobs were maintained as opposed to created.

Not all floundering businesses are considered “troubled.” In the EB-5 context, a troubled business is defined as “an enterprise that has been in existence for at least two years and has incurred a net loss during the 12- or 24-month period prior to the priority date of the immigrant investor’s Form I-526. The loss for this period must be at least 20 percent of the troubled business’ net worth prior to the loss.” (USCIS).

Regional Center

Those who invest in a regional center must also submit the same evidence listed under the NCE category, except that a regional center case must show that a capital investment was made in accordance with its business plan in order to be credited with the creation of 10 direct and/or indirect jobs. This may be demonstrated by providing evidence that the project detailed in the I-526 application was successfully executed.

Process

After you have gathered the evidence required to remove the conditions on your permanent residency, you can begin your I-829 petition, which must be submitted within 90 days of the expiration of your two-year conditional green card. This form is sent, along with the $3,750 filing fee, to the USCIS California Service Center. Your spouse and children who are also conditional permanent residents may be included in the same application, but each person will need to submit a separate $85 biometrics fee.

If you have met all the requirements listed in the section above, a decision on your petition will be made within 90 days of either the filing date or the interview, whichever is later. It is important to note that failure to file Form I-829 will result in automatic termination of your conditional resident status and will initiate deportation proceedings.

While your I-829 petition is pending, you will remain in “valid” status, which will be extended automatically in one year increments until USCIS acts on your petition. During that time, you are authorized to travel abroad.

Once your I-829 is approved, you will be issued an unconditional green card for permanent residency in the United States.

And after four years and nine months of permanent residency (90 days before the fifth anniversary of your permanent resident status, including the two conditional years), you may apply for U.S. citizenship, provided that you meet all other requirements for naturalization.

For more detailed information about the EB-5 visa, refer to the following links:

Updated 06/09/2017