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May 9, 2018

USCIS Provides Important I-829 Policy Update

Matthew Galati

Earlier this month, USCIS updated the EB-5 section of its Policy Manual with important I-829 Removal of Conditions-related instructions for officers to grant investors evidence of status.

By way of background, successful EB-5 investors and their families are granted conditional permanent residency for a period of two years. Within 90 days of the expiration of their Green Cards, they must file Form I-829 to remove conditions upon their residency. The regulations provide that upon filing the I-829, residency “shall be extended automatically, if necessary, until such time as [USCIS] has adjudicated the petition.”

The Immigration and Nationality Act, as well as the regulations, mandate timely adjudication of I-829s. Yet, I-829 processing times are currently published at an absurd 25-30 months. Virtually all applicants therefore will have their conditional Green Cards expire before their I-829s can be adjudicated. This creates a logistical problem for investors and their families who want to travel abroad, apply for a job, or renew a driver’s license.

The new section to the Policy Manual provides some assistance in this regard:

D. Extension of Conditional Permanent Residence While Form I-829 is Pending
USCIS automatically extends the conditional permanent resident status of an immigrant investor and certain dependents for 1 year upon receipt of a properly filed Form I-829.  The receipt notice along with the immigrant’s permanent resident card provides documentation for travel, employment, or other situations in which evidence of conditional permanent resident status is required.

Within 30 days of the expiration of the automatic 1-year extension, or after expiration, a conditional permanent resident with a pending Form I-829 may take his or her receipt notice to the nearest USCIS field office and receive documentation showing his or her status for travel, employment, or other purposes.

In such a case, an officer confirms the immigrant’s status and provides the relevant documentation. USCIS continues to extend the conditional permanent resident status until the Form I-829 is adjudicated.

An immigrant investor whose Form I-829 has been denied may seek review of the denial in removal proceedings. USCIS issues the immigrant a temporary Form I-551 until an order of removal becomes administratively final. An order of removal is administratively final if the decision is not appealed or, if appealed, when the appeal is dismissed by the Board of Immigration Appeals.

USCIS’s updated policy is accordingly a step forward in the right direction. However, as IIUSA points out, significant problems remain regarding the timely and accurate issuance of receipt notices and the availability of INFOPASS appointments where applicants can meet with immigration officers to obtain temporary I-551 (i.e. lawful permanent residency) stamps in their passport.

We applaud USCIS for this small, but important step in the right direction. Yet there is much to be done to improve Form I-829 processing.  We have previously advocated for reforms, including the introduction of electronic and template-based I-829 processing (akin to an I-829 exemplar process), which would greatly accelerate adjudication timeframes. As the agency works to clear its processing backlog, hopefully it will take these ideas into consideration.

The lawyers at Green and Spiegel have considerable I-829 experience, including the drafting of Condition Removal Templates, investor representation in problematic cases, and even representation in removal proceedings. Contact us today for more information regarding Form I-829 adjudications and processes. 

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