I-829 Processing Times: An EB-5 Investor’s Guide

How the pandemic and long-standing litigation are affecting the estimated processing time range, and what USCIS is doing about it.

Since the COVID-19 pandemic, there have been some changes to the Case Processing Times page on the United States Citizenship and Immigration Services (USCIS) site. Understanding processing times is important for EB-5 investors who have filed their I-829 petitions to remove conditions from their conditional permanent resident status. At the same time, the I-829 processing times should not be taken at face value. The following guide will help EB-5 investors understand what an I-829 petition is, how to interpret the USCIS processing time estimates, and what to do if your case seems to be taking too long to adjudicate.

What Is Form I-829?

Form I-829 is a petition to remove conditions from an EB-5 immigrant investor’s permanent resident status, or green card. It is the final step before obtaining a permanent green card.

EB-5 investors must submit an I-829 petition to prove that they have successfully met all USCIS requirements during their conditional residency status. Once Form I-829 is approved, an investor can permanently live in the United States, along with their spouse and their unmarried children under the age of 21.

Understanding how to read the estimated processing times for Form I-829 is essential for EB-5 participants.

Filing Form I-829

Form I-829 must be submitted within the final 90 days of an EB-5 investor’s two-year conditional residency period. Once filed, an investor will receive a case number for the adjudication of their I-829 petition and will be able to track the length of time that USCIS estimates it will take to process that investor’s form, given the current caseload and staffing capabilities. The investor’s conditional residency period will be extended while this petition is under review by USCIS.

If an I-829 petition is not filed within 90 days prior to the end of the two-year conditional permanent resident status, an applicant may lose their ability to obtain permanent residency. It is therefore vital that EB-5 petitioners pay very close attention to the expiration date listed on their conditional permanent residency visa. It is also recommended that investors file their Form I-829 as soon as possible.

Prior Steps Before Filing Form I-829

As an I-829 petition is the final step before getting a green card, an EB-5 investor need not worry about filing this form until they have completed all other steps of the EB-5 process. Prior to filing an I-829 petition, EB-5 participants must:

1. Find the right EB-5 project.
2. Invest in the project and get their I-526/I-526E petition approved.
3. Apply for conditional permanent resident status.
4. Lawfully abide by all conditions of the conditional permanent residency visa for two years, filing Form I-829 in the final 90 days.

An EB-5 project must be a new commercial enterprise that creates or maintains 10 or more jobs for each EB-5 investor. Finding the right EB-5 project can increase a family’s chances of immigration approval.

Form I-526 is used by direct EB-5 investors, while investors in regional center projects use Form I-526E.

There are two ways to apply for conditional permanent resident status after Form I-526/I-526E has been approved: Form I-485 for investors already lawfully residing in the United States; or Form DS-260 for investors without an immigrant visa.

Conditional permanent resident status lasts two years. The EB-5 immigrant investor must physically reside in the United States during this time. Travel abroad is possible while a conditional permanent resident, but EB-5 investors should be aware that some limitations apply.

It is during the final 90 days of this two-year conditional permanent resident status that EB-5 immigrant investors file to remove these “conditions”, or limitations, and become fully permanent residents of the United States. This is the point at which investors submit Form I-829, which USCIS will process for adjudication.

Form I-829 Processing

Where to File I-829

Form I-829 can be found on the USCIS website.

How Long Does It Usually Take?

As of October 2022, the USCIS estimates that 80% of all I-829 petitions are processed within 57 months, or less than 5 years. However, this does not mean that each EB-5 immigrant investor’s petition will take this long. Some I-829 petitions are processed in less time.

EB-5 investors should not take this estimated processing time at face value and keep in mind that processing times vary for each applicant.

Understanding the I-829 Estimated Processing Time Range

Understanding the Previous Processing Time Range

Immigrant investors who began their EB-5 journey prior to 2022 will notice that the USCIS website has changed the way in which they present their I-829 estimated processing times. Before 2022, USCIS used to publish a range of dates for I-829 processing times, as seen below:

Former I-829 processing time range.

First-timers to the site would logically assume that most I-829 applications are adjudicated within the stated estimated processing time range, but the truth is that about half of these petitions are actually adjudicated ahead of schedule—even before the lower number in the range. Here are what these numbers really mean:

• Lower Number: The time by which 50% of petitions are adjudicated
• Higher Number: The time by which 93% of petitions are adjudicated

In other words, about half of petitions are completed ahead of the range, another 47% are processed within range, and just 7% are adjudicated beyond the time range given. This tells a very different story than what this estimated processing time range indicates when taken at face value.

A less experienced EB-5 investor who looks at these data points may assume the lower number is more likely to represent typical processing times and that delays only affect outlier petitions. But there’s one more key thing investors need to know: The higher number is also the figure used to calculate the date for inquiry into abnormally long processing times, most often due to long-standing litigation.

Currently, this method is not what investors will find on the USCIS website.

The New Processing Time Range

USCIS has ceased sharing the 50%-93% estimated processing time range for I-829 petitions. Now, USCIS simply lists the time by which 80% of I-829 applications are processed, as seen below:

New I-829 processing time range, as of October 2022.

According to the USCIS website, 80% of EB-5 participants can anticipate that their I-829 petition to remove conditions from their permanent resident status will be processed within 57 months.

This I-829 processing time is calculated by the number of days that have elapsed between USCIS receiving the petition and USCIS approving the petition. This data represents the number of months it took to process 80% of all I-829 petitions in the last six months. This estimated processing time is updated every six months.

What Is The Best Way to Derive an Estimated Processing Time Range?

The answer: actual historical processing data. USCIS not only provides current estimated processing times; they also provide historical processing data on the median time it took to process I-829 petitions. In the context of the I-829 petition, the “median time” refers to the number of months it took USCIS to adjudicate one half of all the I-829 petitions in a given period. Although looking at data from previous quarters doesn’t lay everything on the table— nothing available to date can provide 100% accurate predictions— real history can provide a reliable glimpse into what was at the very least previously normal.

Median processing times for Form I-829, 2017-2022, as of October 2022.

By looking at the historical national median processing times data for all USCIS offices, EB-5 immigrant investors can see that there was a strong spike in the number of months it took to process Form I-829 petitions starting in the fiscal year 2021. Since the U.S. government starts its fiscal year on October 1st of a given year, not January 1st, this data refers to the period from October 1st 2020 to September 30th 2021.

The 39% increase in I-829 processing times year over year in 2021 was matched yet again by another sharp increase in fiscal year 2022, ending September 1st 2022.

Yet the data clearly shows that I-829 processing times had been holding steady prior to 2020, or the start of the COVID-19 pandemic. In the three years before the start of the global pandemic and consequent government shutdown, USCIS only took an average time of two years to process half of all I-829 petitions. With the world returned to normalcy, it is reasonable to assume that the current median time of 45.6 months to adjudicate at least 50% of I-829 petitions will return to pre-pandemic levels of efficiency.

Median processing times for Form I-829, 2012-2016.

The USCIS website also provides further historical data for I-829 processing times going back to fiscal year 2012. EB-5 immigrant investors can see from this data that the median I-829 processing times have jumped significantly from their historic lows a decade ago. For instance, in fiscal year 2012, it took less than six months to adjudicate half of all I-829 petitions.

This additional historical processing data demonstrates that while the pandemic has certainly had an outsize effect on the I-829 backlog, it is not the only factor. The EB-5 program has been greatly increasing in demand every year since 2012, yet the USCIS budget for adjudicating immigration forms has not. Without additional federal funding, USCIS will not be able to process I-829 petitions for the removal of conditions from permanent resident status as fast as it did a decade ago. The agency does not yet have the employee and processing capacity to keep up with the fourfold increase in demand. However, USCIS has announced efforts to combat the additional slowdown in processing time due to the pandemic.

For reference, here are the FY2019 Q1 processing statistics for Form I-829.

Number of months to adjudicate I-829 petitions, FY 2019 Q1.

Temper your findings with current events (pandemic-induced shutdowns and financial instability at USCIS among other challenges in FY2020, for example), and an investor has the opportunity to develop a more realistic idea of their I-829 processing times. Additionally, it can provide insights into discrepancies between the official estimated processing time ranges and actual processing.

What Does The I829 Processing Time Depend On?

Ultimately, I-829 estimated processing times depend on the productivity at USCIS in any given quarter of any fiscal year and on current demand for I-829 applications. Any EB-5 investment participant can easily access I-829 adjudication data via USCIS’s Immigration & Citizenship Data page.

The Immigration and Citizenship Data archive includes both current estimated processing times and historical estimated processing times. The site includes processing data for Form I-829, as well as for Form I-485 and all other USCIS petitions and applications. It is a great resource for EB-5 participants to better gauge how long their current processing could take, for any and all forms, petitions, and applications required to complete the EB-5 Immigrant Investor Program.

The historical data found on this page makes clear that there have been many fluctuations in USCIS’s I-829 adjudication productivity through the years. What’s most exciting is that, beyond the global slowdown in government productivity due to the COVID-19 pandemic, it is obvious that productivity is on the rise.

In March 2022, USCIS announced a new three-part initiative to be implemented throughout the organization. The goal of this initiative is to increase the efficiency of the processing of immigration forms and petitions. The agency also seeks to reduce burdens to the overall legal immigration system.

“USCIS remains committed to delivering timely and fair decisions to all we serve,” said USCIS Director Ur M. Jaddou. “Every application we adjudicate represents the hopes and dreams of immigrants and their families, as well as their critical immediate needs such as financial stability and humanitarian protection.”

The first part of USCIS’ agency-wide initiative is to reduce the large backlog of unprocessed forms, petitions, and other cases of all potential immigrants, not just those immigrants in the EB-5 immigrant investor program. They also seek to improve their capacity to allow prospective immigrants to have timely access to the agency’s employment authorization documents. Finally, the USCIS hopes to expand their “premium processing” capabilities for certain form types.

USCIS has not announced plans to expand their premium expedited processing services into other types of immigrant visas such as EB-5, it is encouraging to see the agency taking steps to expand their expedited adjudication capabilities. If this expanded premium processing is a success, it may lead to future expansion into other types of immigrant visas.

In a March 29th, 2022 press release, USCIS stated:

“Due to the COVID-19 pandemic and resource constraints resulting from the prior administration, USCIS inherited a significant number of pending cases and increased processing times. Through today’s actions by the Biden administration, USCIS is acting to reduce these caseloads and processing times, while also ensuring that fair and efficient services are available to applicants and petitioners.”

Why Are USCIS Estimated Processing Time Ranges for Form I-829 So Long?

During 2020 and 2021, the most critical years of the COVID-19 pandemic, EB-5 investors who checked the processing times for I-829 petitions may have received quite the shock. For instance, on November 10th, 2020, the estimated processing time range for I-829 petitions ranged from 36.5 months to an eye-opening 234 months. That’s 19 and a half years!

Don’t lose sleep yet, though. A nearly 20-year wait is not the norm. And, as with many things post-pandemic, the times have changed.

The most reasonable scenario for such a long-estimated time range is that there were a series of I-829 petitions caught up in legal hurdles since 2002 that have finally reached processing. This supposition comes from indicators from between 1995 and 1998, whose I-526 petitions USCIS approved and later deemed problematic—not because they didn’t meet requirements but because of EB-5 eligibility requirements changed later on.

Previous decisions by the U.S. immigration body in place prior to USCIS (the Immigration and Naturalization Service, or INS) changed the eligibility requirements for EB-5 investors before the transition to the new immigration body (USCIS) was complete. This essentially had the effect of leaving immigrant investors who applied under the previous requirements in limbo. As would be expected, these issues ultimately led to litigation.

As a result of this litigation, Congress enacted Public Law 107-273 in 2002. This piece of legislation allowed affected EB-5 program participants to adjust their EB5 investment documents to satisfy the updated regulations, thereby helping them secure their long-awaited U.S. permanent resident status.

This new law also said that the immigration body is required to publish regulations within 120 days. Yet, in 2019, 17 years later, they still had not surfaced publicly. These clues have led to new conclusions that such long estimations of processing times include these I-829 petitions from several decades ago, meaning these dated I-829 petitions have finally been processed.

So, if you are a newcomer to the EB-5 investment process, don’t fret that your I-829 processing time range appears to be upwards of two decades! That high number is likely nothing more than evidence that the EB-5 investors who waited nearly 20 years have finally seen their day. Any new investors are likely to be spared such delays.

Similar Pattern, Different Petition

In late FY2020, we saw a similar pattern emerge with Form I-526 processing times. The estimated processing time range on this petition had nearly doubled in July 2020. Investors were left with inquiry dates five to six years prior. The shift in time range was curious because statistics showed very few aged and still-pending I-526 applications. Questions arose then about whether this move may have been ill-intended—essentially, whether the motive was to quell case inquiries entirely.

The agency’s publicly posted processing times show that USCIS has also taken steps to drastically reduce the backlog on Form I-526. In fact, the immigration body is taking action to reduce processing times across all immigration visas, not just EB-5. To achieve this, USCIS announced the establishment of new internal “cycle time” goals and began implementation of those policies midway through fiscal year 2022.

Internally, the agency uses a metric known as “cycle times” to monitor the number of pending cases that USCIS has on its workload. A cycle time measures the number of months’ worth of pending cases waiting to be adjudicated for each particular form. This is distinct from the publicly posted median processing time data, which demonstrates the average amount of time it took USCIS to process a certain form. USCIS states that while the cycle times metric is only used “in office”, these cycle times are usually comparable to the current and historic median processing times available through the agency’s Historic Processing Times webpage.

USCIS believes these new goals for their internal metrics will help guide the efforts of their workforce to reduce the backlog on all immigration processing. In the aforementioned March 29th 2022 release, USCIS stated that “as cycle times improve, processing times will follow, and applicants and petitioners will receive decisions on their cases more quickly. USCIS will increase capacity, improve technology, and expand staffing to achieve these new goals by the end of FY 2023.”
This means that the estimated processing times for adjudication of all petitions, including Form I-829, are likely to drop significantly in the years to come.

What Can You Do If Your I-829 Is Taking Too Long?

According to USCIS, EB-5 immigrant investors cannot file an inquiry into why their I-829 petition is taking so long until their I-829 case is deemed to be outside of the normal processing time range. USCIS considers an I-829 petition to be outside normal processing time when the case has been open longer than 93% of all other I-829 cases.

This is where understanding the lower and upper ranges of the I-829 estimated processing time becomes important. Remember, the upper number in the estimated processing time data is the one that represents the time it took to adjudicate 93% of cases.

In order to better determine an EB-5 immigrant investor’s individual case status, USCIS provides a free individual case tracking tool through their website. To that end, EB-5 participants seeking to file an inquiry should follow these steps:

• Go to the USCIS case status tracking tool.
  • A link to this tool is also available through USCIS’ general Check Case Processing Time page after searching for Form I-829 processing times. It is listed below the stated number of months as “Check your case status”.
• Enter the receipt number of your I-829 petition.
• If your case falls outside of the normal processing times (i.e. it is taking longer than 93% of I-829 cases), a link will be provided to submit an inquiry.

How to Get Started on Form I-829

At the end of the day, the process for filing Form I-829 and waiting for adjudication is normally quite simple for the majority of EB-5 immigrant investors. To summarize, these are the following steps a prospective immigrant needs to take to submit their I-829 petitions to USCIS:

• The EB-5 investor must properly invest in an EB-5 project.
• Submit Form I-526 or Form I-526E to USCIS for approval.
• Be approved for a two-year conditional permanent resident status by USCIS.
• Live and abide by all conditions of the investor’s permanent resident status.
• Fill out Form I-829– Petition by Investor to Remove Conditions on Permanent Resident Status– during the final 90 days of the conditional permanent resident period.
• Wait for the I-829 petition to be adjudicated by USCIS.
• Use the USCIS individual case tracking tool to determine how long the current estimated processing time is for Form I-829.
• If the case tracking tool indicates that the processing for a particular EB-5 immigrant investor is taking longer than 93% of all other cases, then the investor will be allowed to submit for a case inquiry. If determined to be worthy of a case inquiry, a submission prompt will be provided after the investor uses the case tracking tool.

If any part of the I-829 adjudication or the removal of conditions from permanent resident status seems daunting, simply contact EB5AN. Our company representatives and immigration consultants are happy to help any and all prospective and current immigrant investors and their family members to achieve their dream of living in the United States.