Many foreign entrepreneurs and certain family members of the entrepreneur can avail themselves of the pathway to citizenship that the EB-5 immigrant Investor Visa can offer. However, unlike many other pathways to citizenship, the green card initially provided by this program is merely conditional. This means, that absent a petition to remove conditional status, the conditional green card will expire after two years. However immigrants who can prove that they have satisfied the conditions attached to the EB-5 program will be granted non-conditional legal permanent resident status.
What is the Process typically faced by an EB-5 Immigrant Investor?
Typically, the intending immigrant investor must begin the EB-5 process through the filing of an I-526 petition. Form I-526 is the form that starts the immigration process for intending EB-5 who have established a new commercial enterprise or invested through a regional center. The EB-5 immigrant must make initial evidentiary showings with the filing of the application showing:
- Showing that a lawful business entity has been established in the United States. Evidence to prove the investment can include a partnership agreement, articles of incorporation, other organizational documents, stock purchase agreements, payroll records, and other documentary evidence.
- If whether the enterprise was established in a targeted employment area is at issue, a showing must be made that the area or zone qualifies as such.
- Evidence that the immigrant investor has invested or is in the process of investing the requisite amount for the area where the business is located
- Evidence that capital used for the investment was earned or derived through lawful means. USCIS is particularly stringent on this point and is likely to require the last five years of tax returns, evidence of sources of capital, and other information showing that the capital came from lawful sources.
- Evidence showing that the business is expected to create at least 10 full-=time jobs for American workers. Records showing employees hired and a business plan showing intended future hires can show your intent.
- Finally, the immigrant investor must make a showing that he or she will be engaged in the day-to-day management managerial control of the operation.
Once the I-526 petition is approved, the EB-5 investor can apply for an immigrant visa at a U.S. consular post. The EB-5 immigrant can then enter the county at any U.S. port of entry as a conditional permanent resident. Alternative procedures exist if the immigrant investor is already located within the borders of the United States.
What Effect Does a Conditional Green Card Have?
While a conditional green card carries the same privileges and responsibilities as any other green card, it is subject to expiration after two years. Under the immigrant investor program, there are certain requirements and conditions that the immigrant investor and investment must satisfy. Some of these conditions imposed on the EB-5 program include that the investor will make a sufficient investment, the investment was maintained, and the required amount of jobs were created or preserved. Since it cannot be known whether the EB-5 immigrant investor will end up satisfying these conditions at the outset of the investment into a new commercial venture, the immigrant investor is granted a two-year conditional approval to stay in the country. During that time the immigrant investor must endeavor to ensure that all conditions attached to the EB-5 visa are satisfied. Furthermore, the EB-5 investor must also file a timely petition with the United States Citizenship & Immigration Services (USCIS). Failure to file a timely petition can result in the loss of the opportunity to achieve citizenship through this EB-5 petition.
How can Conditional Status Be Removed from the Green Card?
The green card’s conditional status can be removed by filing Form I-829 at least 90 days prior to the expiration of the two year conditional green card granted through the EB-5 program. The immigrant investor must show that conditions imposed on his or her permanent residency have been satisfied including investment and job creation obligations. Typically the investor must also show that the funds are still invested into the new commercial venture. If satisfaction of these conditions can be proven, then the immigrant investor is likely to be granted permanent residence. Due to the consequences an untimely filing can have, EB-5 investors who are approaching the one year and nine month anniversary of their conditional visa must act quickly. Immigrants who file their I-829 prior to this date will remain in lawful status while their decision is pending even when more than two years has elapsed. Furthermore if the I-829 is denied, the immigrant retains a right to appeal, to file a motion to reconsider, or to refile your petition as part of removal proceedings should the USCIS take such action.
Rely on Our Immigration Experience
The experienced and strategic immigration attorneys of Colombo & Hurd are dedicated to meticulously handling difficult immigration situations for individuals and employers. To schedule a confidential legal consultation regarding your immigration concerns call an EB-5 visa lawyer 800-659-7142 or contact us online.