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Removing Condition on Permanent Residence Based on Investment

by Hamid R. Kashani, Attorney at Law
Nov 07, 2018 (last modified Apr 24, 2019)

Successful EB-5 immigrants initially receive a conditional permanent resident status, which would be good for two years. In approximately two (2) years, they must file a second petition to remove the condition on their permanent residence and receive an unrestricted permanent residence.

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When and how can I remove the condition on my permanent residence?

Within the 90 days period before the second anniversary of obtaining your conditional permanent resident status, you must file a petition to remove the condition on your permanent residence and receive an unrestricted green card.

To remove the condition on your permanent residence, you must file Petition by Entrepreneur to Remove Conditions on Permanent Resident Status (USCIS Form I-829), together with documentation showing that you have sustained your investment and job creation obligations:

  • If you received your EB-5 visa through direct investment, you must assemble detailed and extensive evidence establishing the value of your investment and showing that you have created and sustained at least 10 jobs. In addition, you must submit documentation regarding the employment authorization of the individuals who have occupied those jobs.
  • If you received your EB-5 visa through regional center investment, you should request that the regional center officials provide you with documentation showing that you have met your investment obligation and at least 10 jobs were created and are sustained because of your investment.

To see the current USCIS fee for your petition, see USCIS Fee Schedule.

To see how long the USCIS would take to adjudicate your petition, see USCIS Processing Times.

When you file your petition for removal of the condition on your permanent residence and the USCIS accepts your petition, the USCIS will automatically extends your conditional permanent residence for one additional year and will send you a receipt reflecting this fact. You must keep this receipt with your green card.  If you leave the country, you will need both your green card and the receipt, to get back.

What happens if I am late in filing my petition to remove the condition on my conditional permanent residence?

Failure to file a timely petition to remove the condition on your permanent residence will result in the expiration of your status and cancellation of your conditional permanent residency.  As a result you become removable.

If the delay was because of good cause and due to extenuating circumstances, you may request that the USCIS excuse your delay in its discretion. However, you must act expeditiously and really have a good cause. Remember that excusing a late filing is discretionary.

What happens if the USCIS denies my application for removal of the condition on my permanent residence?

If the USCIS denies your Petition by Entrepreneur to Remove Conditions on Permanent Resident Status, you may renew your application before an immigration judge, for de novo review, during the removal proceeding. If the immigration judge also denies your application, you may appeal to the Board of Immigration Appeals (BIA). In those proceedings, the USCIS will have the burden of proof.  That means that it would be the USCIS that must prove that you are not entitled to the approval of your Petition by Entrepreneur to Remove Conditions on Permanent Resident Status:

If, after initial review or after the interview, the director denies the petition, he or she shall provide written notice to the alien of the decision and the reason(s) therefore, and shall issue an order to show cause why the alien should not be deported from the United States. The alien's lawful permanent resident status and that of his or her spouse and any children shall be terminated as of the date of the director's written decision. The alien shall also be instructed to surrender any Permanent Resident Card previously issued by the Service. No appeal shall lie from this decision; however, the alien may seek review of the decision in deportation proceedings.  In deportation proceedings, the burden shall rest with the Service to establish by a preponderance of the evidence that the facts and information in the alien's petition for removal of conditions are not true and that the petition was properly denied.

8 C.F.R. ยง 216.6(d)(2).

Related Topics:

EB-5 Regional Center Investment

EB-5 Direct Investment

 

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