The removal of conditional residence is a complicated process. It requires pieces of evidence on sustained investment, job creation, and material change. People entering the US using business visas are said to have conditional permanent residence status. Removal of the conditions is the process where the business investors are granted full permanent resident status. Immigrants living in the US may need legal help on their immigration status. Therefore, the investors are offered EB5 visas to stay in the US for two years before petitioning to remove conditions and become permanent residents in the US.
If you require residence conditions removed, hiring an attorney is crucial. Your lawyer will guide you on the steps needed. At California Immigration Attorney, we have many years of experience practicing immigration law in California. Additionally, our attorneys are responsive, proactive, and accessible throughout and review all your materials to ensure you meet all the requirements.
Understanding Removal of Conditions on Your Residence Status
When you receive a green card using the conditional permanent resident visa program in the US, the green card gives you a conditional, not permanent residence. Notably, the card expires after two years. To remove the conditions from permanent residence status, you must file Form I-829 with the Citizenship Immigration and Services within 90 days after the two-year conditional residence period's expiration.
However, if you don't file the petition within 90 days before the status period expires, you may compromise your permanent residency eligibility, and you may be put in removal proceedings. If the delay resulted from extenuating circumstances or good cause, you might apply a written explanation requesting the USCIS to remove your delayed filing.
After filing the I-829 petition, you will be issued a receipt notice showing that your conditional residence status is extended by a year. You may use the notice as a travel document for you and your family to travel to the US as a conditional resident. Notably, when the I-829 petition remains pending for more than a year, you should obtain 1-551 stamps from local USCIS district offices via an Info pass appointment.
To remove the permanent resident condition, you should submit form I-829 together with evidence that you met the requirements for EB-5 investment. Notably, the requirements vary depending on the investment type, whether a troubled business, a commercial enterprise, or a regional center. Below are the requirements for each type of investment:
New Commercial Enterprise
It comprises evidence showing the required total amount you have invested or evidence documenting you sustained your investment throughout the two years in the NCE, such as financial statements, income tax returns, contacts, bank statement receipts, business licenses, and federal income tax.
A troubled business involves an enterprise existing for at least 24 months of incurring losses during the same period before the date of investors form I-526. Additionally, the loss must be approximately 20 percent of the troubled business.
When investing in a regional center, you must provide the evidence required in a new commercial enterprise. The regional center should show capital investment you made per the business plan credited with ten direct or indirect jobs.
General Procedure For Removing Conditions
When investors obtain approval of I-829 to remove conditions, their spouse and unmarried children below 21 years will become permanent residents in the US Indefinitely. Alternatively, denial of the petition results in termination of resident status and initiation of a deportation proceeding. The immigration investor is supposed to submit evidence with their portion to remove conditional residence. Notably, the evidence acts as proof for meeting all the requirements of the USCIS program. Alongside your copy of the conditional resident card, the application must prove the following essential requirements:
- A piece of evidence showing the immigrant investor invested or was still investing the required capital. Additionally, immigrant investors should have sustained investment throughout their period of residence in the US.
- Additionally, there should be evidence that a new commercial or new commercial enterprise is expected to be created within a short duration. Furthermore, the created enterprise should have approximately ten full time qualified employees. In cases of troubled businesses, the investors should prove that their commercial business managed the required number of existing employees or maintained the investment level as per their admission as permanent residents.
Evidence For Investment and Sustainment
The petition should include proof that the immigration investor was in the process, or he/she invested with the required capital. Notably, USCIS expects all the requisite capital to have been invested in the US. The evidence reflecting the investment includes an audited financial statement or probative evidence, NCE bank statement, and your bank statement showing withdrawal of funds directed to the US.
b) Sustainment of The Investment
As an investor, you should prove that you sustained the United States' investment during your conditional resident period. Suppose you meet the substantial investment capital requirement in good faith, and you continually maintain the capital investment over the sustainment period. In that case, USCIS considers you to have sustained the required actions of removal of conditions.
Additionally, when filing a petition to remove the conditions on your residence, It is not a must that you invested the full amount of required capital. However, you should provide evidence that you met the requirements. You may produce evidence that includes invoices, state quarterly tax statements, contracts, receipts, business licenses, receipts, and bank statements.
Evidence of Creation of Job
To meet your job creation requirements, you should have approximately ten full-time posts for qualified employees created or formed within the authorized time. Additionally, the non-regional area investor should show that the new commercial enterprises directly resulted in qualified employees' job positions.
Furthermore, the regional investors should show the new commercial enterprise either directly or indirectly created jobs. Examples of evidence that you may prove for job creation include payroll records, forms for employment eligibility indicating employment by the new commercial enterprise, and tax documents may provide evidence for jobs resulting from your investment.
When providing evidence for jobs directly created or maintained in a distracting business, you may use varied evidence, including relevant tax documents, Payroll records, and form 1-9, that shows employment during the investment time. When you are filing a petition, remove the investor’s residence conditions.
When providing evidence for the created jobs from the regional center investment indirectly, you may provide evidence from statistically or economically valid forecasting devices, including domestic and foreign analysis for exported goods and services, multiplier tables, feasibility studies, etc.
In cases where the regional investor demonstrates job creation using the economic input-output method, you should demonstrate the model is valid. Moreover, you should have relevant documents, including economic impact analysis, comprehensive plan, etc., to meet your proof burden.
Notably, when the input model reflects jobs created directly, you should provide payroll records to prove that direct job creation input was reasonable. However, if you have not yet created the jobs, you should provide a comprehensive business plan showing the jobs you plan to create, and the time they will be created.
When the input models reflect expenditure, you should demonstrate that your expenditure input is reasonable by providing receipts, and income projection for costs, sales, and income projection linked with the business plan for future expenses.
Additionally, when the input model reflects on revenue, you should provide relevant documentation for the revenue input and tax. Other revenue financial records or projection documents for cost, sales, and income projection, like bankroll income records linked with the business plan for revenues expected to take place, also act as valid evidence.
Notably, when determining whether you created requisite jobs, it's not a guarantee that the jobs will exist when filing a petition to remove conditions. If you prove that the new business enterprise created approximately ten full-time jobs for qualifying employees, your job creation requirement is fulfilled.
However, the jobs should have been considered permanent at the creation time. You will be allocated full-time positions depending on the date you filed the petition to remove conditions. Temporary, seasonal, and intermittent direct jobs will not qualify as a full-time job. However, the jobs which last for at least twenty-four months won't be considered seasonal, temporary, intermittent, or transient.
According to USCIS, engaging in business and creating jobs is determined by various variables that immigrant investors may lack control over. You seek admission in the United States as a business immigrant under a conditioned permanent basis. You will have permission from the USCIS to remove the conditions if the circumstances change.
Therefore, if you are a business immigrant investor, you may continue with your petition for removing the conditions by presenting documents as evidence. Additionally, the evidence will demonstrate that you have satisfied the requirement to remove the conditional residence. Note that USCIS will not deny you a petition to remove the conditions for not adhering to your business plan in the I-526 Form. Moreover, the immigrant investor may engage in various business opportunities within the industry category, which wasn't previously allowed for the regional area.
Notably, at the immigrant’s conditional period, the investment might be deployed in other ways, which aren't contemplated in the previous form I-526. Furthermore, you may opt for further deployment during your conditional period in several ways. For instance, the further deployment will be applicable in situations where a requisite job is created following the business plan, where a requisite job wasn't created following the initial business plan, and where the further deployment was not contemplated during the filing of the I-526 form.
Note that on the form I-526 on immigration petition, the immigrant must fill the form with the full intention of following the business plan contained in the petition. Additionally, the investor must file the form with good faith. In case the immigrant investor fails to demonstrate they filed their petition with good faith, the USCIS concludes the immigrant investor was aiming at violating the laws on immigration investors. Therefore, once the USCIS discovers that you evaded the immigrant laws, your conditional immigrant status will be terminated.
The USCIS will allow flexibility in filing the I-526 Form. However, nothing relieves the investor from their requirement to remove conditions. The immigrant investor is required to demonstrate the following even when the event of a change is, in course:
- Capital required is access to the alleged business or in business liable for creating jobs.
- The investor paced the required funds at risk during the entire period of their conditional residence in California.
- The immigrant investor maintained or created, or was expected to create the requisite jobs within the given period.
- The investor sustained the investment in the entire period of conditional residence in California.
Therefore, if the immigrant investor doesn't meet the above requirement, they won't be eligible to remove the conditions.
Extension of Conditional Permanent Residence While Form I-526 is Pending
The USCIS will extend the investor's conditional residence status for a period not exceeding 12 months for properly filed I-829 forms. Notably, the immigrant's receipt notice will provide employment, travel, and other conditional residence evidence. Within a month of expiration of the 12months extension, or after the year's extension expiration, the conditional resident with I-829 will take their notice to the next USCIS offices and obtain valid documents indicating their employment and travels. Therefore, after the officer's approval and confirmation of the investor's status, the USCIS will extend the immigrant's status until adjudication of form I-829.
If your Form I-829 is denied, you should seek a review of the denial in the removal proceeding. Notably, the USCIS will provide a temporary I-551 until the order for removal is administratively final. Note that the removal order will be administratively final when the decision isn't filed or when the immigration board dismisses the appeal.
When Should You File A I-829 Petition?
An I-829 petition to remove the conditions should be filed within ninety days preceding the immigrant investor's 2nd anniversary of the date they received conditional residence status. Therefore, the investor may look at their green cards and then count 90 days backward. The immigrant investor's expiration date will be calculated by the dates they became US conditional residents, but not the date upon the filing of their I-526 petition nor the date when the USCIS approved their petition.
Notably, the I-829 won't be filed ninety days before the expiration of the immigrant investors' status. Additionally, the ninety days includes weekends and the final day of the status expiration.
For instance, you are an immigrant investor, and your status expires on November I, 2020. Therefore, the earliest USCIS may receive the I-829 will be on August 3, 2020. In case the USCIS receives the petition on August 2, 2020, after the expiration of the status, the petition will be rejected.
What Should You Include In The I-829 Petition?
You should accompany the I-829 with extensive documents about the investment you are carrying in the US. Therefore, you will include the following documents:
- Your copy of a conditional permanent residence card.
- A commercial enterprise tax return for a period of the past 5years: your spouse's and children's green card copies.
- Your investment evidence in the commercial enterprise sector, like bank transfers and financial statements.
- A proof of the total numbers of your full-time employees as you commence your investment and the period of I-829 filings like paychecks, I-9s, and payroll documents. The evidence will be proof that you formed the requisite figure of jobs to the US workers.
- Your commercial enterprise's ongoing evidence includes receipts, formation documents, invoices, business licenses, and statements of your bank account.
- In case you faced conviction or arrests during your conditional permanent resident period, you should submit all your records concerning the arrest. Additionally, filing the I-829 is chargeable with approximately $3,750, a biometric fee of $85. Note that the fee should be submitted together with other documentation.
Specific Sections to Pay Attention When Filing The I-829 Form
While filing your I-829 form, you need to pay more attention to the following aspects:
a) Part 2, Your Personal Information
Ensure that you put the US address for the place you live according to the immigration regulations; a petitioner doesn't need to be a US as they file their I-829. However, they won't mail another green card to an overseas address. In case the immigrant thinks they won't be in the US after filing the I-829, they should give a US address where the USCIS will send the new green card and respondents.
b) Part 3 and 4
You should include all your dependents like children and spouses in the form. Therefore, failing to include your dependant might result in the expiration of dependants status and other potential consequences. Additionally, include the dependants on the petition or ensure they submit their separate petitions.
What Happens to The Immigrant’s Status If You Fail to File I-829 Petition?
It might take some years for the USCIS to decide on the I-829 petition. After receiving the I-829, the USCIS sends a receipt for notification. Notably, the notice has a number located on its top left corner. Therefore, with the receipt number, you might check your I-829 status online.
The notices are issued to the applicant and all his/her dependents.
Additionally, the notice will extend your conditional resident status by a year, providing authorization for travel and work. Ensure that you don't misplace your receipt notice since you will require it to evidence your travel/work and status authorization. After filing the I-829, the USCIS sends a written notice of the time, location, and date for the immigrant's biometric appointment. Notably, you should appear in the appointment, or the petition is denied. The notice contains critical information about the steps that should be followed in the biometric appointment's rescheduling.
What Happens if You Don’t Meet the Filing Deadline
The USCIS requires you to file your I-829 within the authorized period. However, you may provide extenuating situations that justify your failure to meet the filing deadline. After you provide a valid justification, the USCIS will accept your late application. Additionally, provide supportive evidence for failing to file the petition at the required time. Notably, failing to timely file your petition might draw severe consequences like an initiation to remove the proceedings. However, to avoid filing unauthorized time, seek assistance from an immigration lawyer to give legal advice.
Are there Options When The I-829 Petition Is Denied?
Unfortunately, there is no good faith waiver for investors failing to meet the requirements for removing conditions. Additionally, in the US, there is no administrative appeal for the denied I-829 petition. An application is usually rejected due to its inability to prove that the financial assets are legitimate or illegal funds investment. Additionally, when the submitted documents don't comply with the USCIS qualifications and require reevaluation to qualify.
The immigration judge has the authority to remove conditions on your residence or deny the petition depending on the presented evidence and order deportation of your family.
Notably, if your petition is denied, you and your family will face deportation. If you are in this situation, you need to call a California immigration attorney since they have many years of immigration court experience. The lawyers will advise you on the best approach to obtaining residency in the US to assist you in avoiding costly mistakes. Additionally, our lawyers will evaluate why the USCIS denied your petition, renew your petition, and gather evidence to assist in the approval of your new petition.
Find An Immigration Lawyer Near Me
If you require the removal of conditions on your residency and become a permanent US resident, seek an immigration attorney's help. At the California immigration attorney, we walk with you, help remove your conditional status, and apply for your spouse’s citizenship and unmarried children under 21 years. Additionally, your attorney will guide you step by step until you gain permanent citizenship. If you are a foreigner living on a business and investor visa and want to settle permanently in California, call us today at 424-789-8809.