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Filing for Immigrant Petition (I-526)
Investors should first file Form I-526, “Immigrant Petition by Alien Entrepreneur,” accompanied by supporting documentation with the USCIS California Service Center. Form I-526 is equivalent to the I-140 in that after approval, one still needs to adjust status through an I-485 if he or she is in the U.S., or through consular processing if he or she is outside of the U.S. The required documentation must show that the immigrant investor has invested or is investing the required lawfully-gained capital in a company within the U.S., and that the investor will create full-time jobs for at least 10 U.S. workers.
There are three ways to invest in the EB-5 category: a new commercial enterprise, a troubled business, or a regional center pilot program. The filing fee for Form I-526 is $1,500. Current processing time for I-526 is four to six months. Eligibility for each avenue of investment varies; please see below for specific information.
Filing for Adjustment of Status/Consular Processing
Once an investor has received I-526 approval, he or she can receive Conditional Permanent Residence by either going through consular processing or filing Form I-485.
If You Are Living Outside the United States
You can become a permanent resident through consular processing if you live outside the United States. Consular processing is when USCIS works with the Department of State to issue a visa on an approved Form I-526, Immigrant Petition by Alien Entrepreneur Petition when a visa is available. Processing time is between 6 months to 1 year.
If You Are Living in the United States
You can become a conditional permanent resident through adjustment of status if you live inside the United States. Once Form I-526 is approved and a visa number is available, you can apply for conditional permanent residence using Form I-485, Application to Register Permanent Residence or Adjust Status.
Processing time is usually anywhere from 6 months to 1 year. Upon approval of the Form I-485 or admission on an EB-5 immigrant visa, the investor and his/her derivative family members are granted two-years of “conditional” permanent resident status. Children must be unmarried and under the age of 21 to be considered derivatives at the time the I-526 is filed.
Often times, there is confusion as to when the 2 year period starts in which the investor must begin to uphold the job requirement. According to USCIS memo “AF M Update AD 09-04”, the two year job requirement commences six months after adjudication of Form I-526. Moreover, according to the USCIS policy, the investor’s company must create and maintain 10 full time jobs within 30 months (2.5 years) after the approval of I-526.
Filing for Removal of Conditional Residency (I-829)
Within 90 days of the 2-year conditional green card’s expiration date, the investor must file Form I-829, “Petition by Entrepreneur to Remove the Conditions” to request removal of conditional permanent residency. This must be filed with the California Service Center. Determination of the removal of conditions on the green card will be made within 90 days of filing or interview, whichever is later. The petition will be granted if the investor has fulfilled the EB-5 requirements in accordance with the business plan in the approved Form I-526 petition. Failure to file Form I-829 will result in automatic termination of the conditional resident’s status and will initiate deportation proceedings.
Immigrant investors remain in “valid” status while their I-829 petition is pending. Their status is supposed to be extended automatically in one year increments until USCIS acts on the petition. During that time, investors are authorized to travel.
Once conditions have been removed, a full green card is granted for indefinite permanent resident status in the United States.