Because Form I-829 is filed at the end of the EB-5 process, many EB-5 investors spend little or no time thinking about it when making their investment choices. While understandable, this is a mistake. Form I-829 is just as important as Form I-526E. EB-5 investors need to have confidence that, at the end of the EB-5 process, their Form I-829 applications will be handled properly.
Compared to many of the other aspects of EB-5 investment, the Form I-829 application has received little attention. This article seeks to put the spotlight on Form I-829 and bring much-needed transparency to this subject.
In this article, we first discuss some of the reasons for the lack of transparency with regard to Form I-829. Then, we provide an example I-829 application cover letter. Finally, we discuss how to choose a project and attorney that you can be confident will properly handle your Form I-829 application when the time comes.
Why Is There a Lack of Transparency Surrounding the Form I-829 Application?
EB-5 Investors Do Not Ask about Form I-829
EB-5 investors do not tend to give much thought to Form I-829 when they initially invest. This lack of attention seems reasonable because Form I-829 is the last step in the EB-5 process.
At the beginning of the EB-5 investment process, most investors are focused on the immediate steps they have to take:
Find a suitable project
Hire a qualified immigration attorney
Compile the Form I-526E application and source of funds documents
Wire $800,000 to the EB-5 fund
File Form I-526E
An EB-5 investor may take for granted that his or her project and attorney will simply take care of Form I-829 at the end of the two-year period of conditional residence. Most investors never ask how their Form I-829 applications will be handled.
What information will the regional center provide? What is the regional center’s approval rate for its EB-5 investors’ Form I-829 applications? What is the attorney’s level of experience and success with Form I-829? Without directly asking the regional center and attorney these questions, an EB-5 investor is risking his or her Green Card on the assumption that his or her Form I-829 will be handled properly.
So, part of the lack of transparency surrounding Form I-829 is due to a lack of attention to this subject by EB-5 investors before they invest. Most EB-5 investors are simply unaware that they need to ask these questions. And that is not their fault.
The Information Needed for Form I-829 Is Not Available Early in the EB-5 Process
When an investor starts researching a project, that project is likely in an early stage of development. Some construction activities may have begun, but EB-5 funds are being raised to support ongoing development activities. EB-5 job creation numbers will increase as money is spent on qualifying expenses. As a result, the relevant data is not available at first.
Form I-526E is used to show USCIS that the project is expected to create enough jobs for an EB-5 investor. This application is forward looking and generally based on estimates. On the other hand, Form I-829 relies on real data to prove these jobs were actually created.
Since the data for Form I-829 is not available at the time an EB-5 investor invests, a regional center may be hesitant to share much information. Such a regional center may mean well, but in an effort to avoid confusion, they may share too little information.
Form I-829 Is Protected by Attorney-Client Confidentiality
While the regional center provides the data and evidence for the Form I-829 application, the EB-5 investor’s attorney is responsible for preparing and filing the form itself. As a result, Form I-829 is confidential.
Confidentiality is important and must be protected. But the EB-5 industry has used confidentiality as an excuse to avoid transparency. With a little work, confidentiality can be protected while providing high levels of transparency to the Form I-829 application.
To our knowledge, no one in the EB-5 industry has made any serious efforts to bring transparency to the Form I-829 application. Little is written on the subject. No example documents are available.
EB5AN Brings Transparency to the Form I-829 Application
EB5AN is pleased to once again partner with Anahita George of George and Marzialo PLLC to bring more transparency to the EB-5 industry. EB5AN recently partnered with Anahita to bring transparency to source of funds documentation. Now, despite the obstacles noted above, we bring transparency to the Form I-829 application, as well. We believe EB-5 investors should have all the information they need to make informed decisions.
EB5AN has worked with Anahita to provide a downloadable sample Form I-829 application cover letter. This sample is based on real project and investor details.
Note that for this sample, the name of the investor and dependents, other identifying information, dates, etc., have been changed to protect privacy. No confidentiality was breached in the production of this sample.
This sample Form I-829 cover letter will give you an idea of what a high-quality Form I-829 application looks like. The sample is based upon the following primary facts:
The investor is an Indian national with two dependents
He invested $500,000 on August 8, 2016, which was used by the project on eligible expenses
His investment was at risk during the two-year conditional residency period
The project created 31.2 EB-5 eligible jobs per EB-5 investor
This free downloadable sample shows the level of detail and quality of a successful Form I-829 application. USCIS requires evidence that the entire investment was sustained at risk and that it created at least 10 new jobs for U.S. workers. By reviewing the exhibits listed in this sample, you will get a sense for the kinds of records that are needed for a successful Form I-829.
Find a Project and Attorney You Can Trust with Your Form I-829 Application
As you can see in the downloadable sample, Form I-829 applications require careful structure, clarity, and ample evidence. The quality of a Form I-829 application is going to depend entirely on the skill and experience of both the EB-5 investor’s attorney and the regional center for the project he or she invested in. Selecting the right regional center, project, and immigration attorney is vital. You need to have confidence that all the necessary information will be put together in a way that makes your Form I-829 most likely to be approved.
If a regional center or attorney is hesitant to fully explain how your Form I-829 application will be handled, you cannot have confidence they know what they are doing. They should be willing to explain the process, give you examples of what evidence will be presented, and provide a timeline for when everything will take place. The process should be open and transparent before you ever invest.
You should look for a project sponsored by a regional center that has a track record of Form I-829 approvals on past projects. And if a regional center is new, ask about the experience of the people managing the regional center. They may have a track record of success or failure with other regional centers and EB-5 projects. The more you know about the people managing your investment, the better.
You should also look for an EB-5 immigration attorney who has a proven record of Form I-829 approvals for past EB-5 investors. Before you hire an attorney, ask how many Form I-829 applications he or she has filed and how many of those were approved.
Anahita George specializes in preparing and filing EB-5 applications for Indian investors. She has completed over 500 applications with a 100% approval rate with USCIS. According to her, “Most investors understand how important Form I-526E is but are less aware of the importance of Form I-829. Before they invest, EB-5 investors should have confidence that the project will not only create the number of jobs needed, but that all the necessary evidence will be provided on time. And they need an attorney who knows how to compile all of this evidence into a clear, comprehensive application. EB-5 investors deserve to know that their immigrant applications are in good hands.”
You Need to Ask the Right Questions
When looking for a project and immigration attorney, you need to ask some specific questions. You should receive clear, direct answers in writing.
Questions for the Regional Center
What information do you provide for Form I-829?
Best Answer: We provide up-to-date job creation evidence, bank statements, and any other documentation needed to support your Form I-829. We provide this information as a template that makes it simpler for your attorney to prepare your application.
Worst Answer: We will provide any applicable data and documents your attorney requests.
When do you provide information for Form I-829?
Best Answer: We provide all necessary information for your Form I-829 application before the 90-day window at the end of your conditional residence period.
Worst Answer: We provide the documentation shortly after your attorney requests it.
How many EB-5 investors have you worked with to get Form I-829 approval?
Best Answer: We have helped dozens of EB-5 investors apply for and receive Form I-829 approval.
Worst Answer: We have not yet had EB-5 investors get to the Form I-829 application phase of their investments.
How many of your EB-5 investors have had Form I-829 denied?
Best Answer: None. We have a 100% Form I-829 approval rate for all of our EB-5 investors on all prior projects.
Worst Answer: We have had one or more EB-5 investors’ Form I-829 applications denied.
Questions for your Immigration Attorney
How many Form I-829 applications have you prepared?
Best Answer: I have prepared dozens of Form I-829 applications.
Worst Answer: I have prepared very few or no Form I-829 applications.
What is your Form I-829 application approval rate?
Best Answer: I have a 100% Form I-829 approval rate.
Worst Answer: One or more of my clients Form I-829 applications have been denied.
Additional Form I-829 Resources
If this topic is new to you, or if you have more questions, we encourage you to check out some of our other resources.
