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Filing an I-526 petition for your EB-5 investor visa

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Those looking for U.S. citizenship by investment via the EB-5 program must prepare and file a Form I-526, “Immigrant Petition by Alien Entrepreneur.” This form is filed by a foreign investor to prove they are eligible for USA investor visa based upon an investment in a qualified EB-5 project.

The investor’s immigration attorney typically files this form together with substantial supporting documentation as well as a letter brief to U.S. Citizenship and Immigration Services (USCIS). If required, USCIS may issue a Request Additional Evidence (RFE) that requires a timely response.

I-526 petition and I-485 requirements

Key requirements of the I-526 petition

1. Proof that an investment of $500,000 in a Targeted Employment Area (TEA) or $1 million in a non-TEA was made, or is being made. The investment must be made in a new commercial enterprise in the USA.
2. The investor is investing personal capital earned or obtained through lawful means. The investor must prove the lawful source and path of the funds.
3. The investment will result in the creation of 10 full-time jobs for United States workers. A full-time job has a minimum of 35 hours per week.

I 526 processing time and Filing fee

The current filing fee for the I-526 petition is $3,765 (all dollars quoted are USD).

After investing in the EB5 project, the I-526 petition is submitted to a USCIS Lockbox and then forwarded to the USCIS Immigrant Investor Program office in Washington, DC. I 526 processing times have varied over time, but at the time of this writing can run over 2 years.

After I-526 approval: 2 routes to conditional permanent residency

Some EB5 investors who are already in the U.S. when their I-526 is approved, and their qualified dependents, are eligible to apply to adjust their status to lawful permanent residents of the U.S.

To file this application, a visa must be “available” under the State Department immigrant quota system.

Alternatively, upon I-526 approval and visa availability, the investor and qualified dependents outside the U.S. may process immigrant visa applications through a U.S. consular post. If approved, they will be admitted to the U.S. as conditional permanent residents.

Whether applying to adjust status in the U.S. or for an immigrant visa outside of the U.S., each applicant and dependent (family member) must provide supporting civil documentation. This documentation shows birthplace and parentage, marital status, etc., as well as historic personal information and responses to a list of questions regarding immigrant admissibility under U.S. immigration law.

The decision to either apply to adjust status in the U.S. or seek an immigrant visa outside of the U.S. is a critical one that can have serious legal consequences. Such a decision should be made in consultation with a competent immigration law attorney.

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Form I-485: Adjustment of EB5 Status process 

I-485 Processing Time & Filing Fee

The filing fee for the I-485 application is $985. There is an additional fee of $85 for the biometrics requirement.

I-485 application processing times vary. They may take as long as one year or more but are generally processed in 6 to 12 months. USCIS notifies applicants by email or physical mail.

I-485 document requirements

The applicant’s immigration attorney usually prepares and files the 1-485 application. Supporting documents may include the following:

• valid birth certificate, marriage certificate, and all divorce certificates
• copy of all passport pages and non-immigrant visas, along with all other immigration-related documents that show maintenance of U.S. status
• two identical colored photographs meeting USCIS specifications, taken within the past 30 days
• biometrics appointments will be scheduled by USCIS for applicants between the ages of 14 and 79
• medical examination and vaccination reports
• biographic information, via form G-325A
• evidence of eligibility: copy of form I-797C received upon the approval of the I-526 petition
• complete documentation of applicant’s criminal history, if any

I-485 Interview

As of October 2017, all investors seeking to adjust status based upon an I-485 application must attend an interview at their local USCIS district field office. Appointment notices are sent by USCIS by letter to the petitioner and his or her attorney. Any requests to change the interview date must be requested in writing ahead of time to USCIS. Such a change will be granted in the discretion of USCIS based upon a showing of good cause.

Scope of interview

The purpose of the interview is to verify all supporting documentation in the petition. USCIS officers seek to ensure that the petitioner is not subject to inadmissibility on any grounds. USCIS officers tend to concentrate their questions on the following:

• whether the applicant is eligible to adjust status based on evidence and maintenance of lawful status in the U.S.
• petitioner’s source of funds — that the EB5 capital was obtained lawfully
• general aspects of the project — dates, timelines, status of the project, how many jobs it has created or is expected to create, etc.

Even though the USCIS will have already reviewed and approved the investor’s I-526 petition, the USCIS officer at the adjustment of status interview may ask any questions to determine that petition was properly approved. Therefore, it is vital that petitioners are well prepared for the interview. They should be ready to answer questions about their immigration history, work history, and similar issues relating to any potential grounds for ineligibility to adjust status or inadmissibility.

Documents required for I-485 Interview

USCIS will provide a list of documentation the applicant needs to bring to the adjustment interview. These documents generally include the following:

• documents confirming the investor’s investment funds were released from escrow for use in the EB-5 project (if available)
• sealed medical exam results
• original or certified copies of birth certificates, marriage certificates, and other civil documents
• all valid and expired passports in the applicant’s possession

Inadmissibility

Applicants are obligated to establish that they are eligible to immigrate and are not inadmissible. It is therefore essential that investors prepare diligently for the interview and perform a full review of the business plan for their investment project. They should work closely with their immigration attorneys, regional centers and advisers to obtain all required information.

If an adjustment of the status or immigrant visa applicant is found to be inadmissible, he or she will not be able to get an EB5 Green Card unless the applicant qualifies for a discretionary waiver. Preparing a successful waiver application is a challenging task. Many waiver applications are denied. This fact highlights the importance of obtaining advice from an experienced immigration attorney — prior to investing and throughout the EB5 process.

Some common reasons for inadmissibility include these issues:

• criminal violations (including minor crimes)
• previous unauthorized entry to the United States
• making a material misrepresentation or committing fraud to obtain any immigration benefit

I-765 Work Authorization and I-131 Travel Authorization

Since I-485 applicants are already in the United States, they can obtain a work and travel authorization while their I-485 application is under processing. They may do this by filing an I-765 “Application for Employment Authorization” and I-131 “Application for Travel Document.”

Immigrant Visa Application Process: Form DS-260

EB5 investment applicants outside of the U.S. and processing their immigrant visas through a consular post must file a DS-260 application for conditional permanent residency. The DS-260 is filed electronically with the State Department’s National Visa Center. Each family member accompanying the primary applicant must file a separate DS-260 application.

Steps

1. Each applicant and their dependents must provide historic personal information:
a) all previous residences
b) employment history from the past 10 years
c) military service information if applicable

2. The applicant has an in-person interview at a U.S. embassy or consulate. The application process is complete once the DS-260 is signed by the applicant in the presence of the consular worker after the interview.

3. Once the DS-260 is approved, the investor and their dependents may make their initial immigrant entry to the U.S. They can then enjoy all the rights and privileges of permanent resident status.

Form I-829 : Removal of conditional permanent resident status 

Upon approval of their form I-485 or DS-260, an investor receives conditional permanent resident status.

During a 90-day window prior to the second anniversary of the date the investor became a conditional permanent resident, he or she is required to seek the removal of conditions. This is done by filing an I-829 petition.

To obtain I-829 approval, the investor must show the following:
• he or she remains a conditional lawful permanent resident
• the investment was sustained throughout the conditional residence
• the investment capital was deployed by the new commercial enterprise to create the required number of jobs for qualified U.S. workers as per the business plan filed with the I-526 petition
• USCIS may require an interview with the I 829 petitioner

Once approved, the investor and their spouse, and eligible unmarried children have completed the Green Card through investment program. They are now lawful permanent residents without conditions.

And they may, when qualified, apply to become naturalized citizens of the United States.

Special thanks to immigration lawyer Robert P. Gaffney for his fact-checking contribution to this article.