Key Aspects of EB-5 Green Card Removal of Conditions

The EB-5 Immigrant Investor Program opens the door for foreign nationals to receive a U.S. Green Card through investment. One important step of this process that can often get overlooked is the removal of conditions on investors’ two-year conditional Green Cards. Understanding how this process works is important for investors who are hoping to secure their permanent residency status in the United States.

This article will explore the key aspects of the EB-5 Green Card removal of conditions, including the necessary forms, eligibility criteria, and guidance on filing Form I-829. It will also detail some common challenges faced by investors and how immigration attorneys can help them on their journey to receiving their unconditional U.S. Green Cards.

Understanding the Removal of Conditions Process

Once your EB-5 application is successful and you receive your conditional Green Card (valid for two years), it’s time to focus on transitioning to unconditional permanent residency. This initial conditional status is to make sure that your commitment to the investment project is genuine, and that you’re meeting the necessary job creation and investment sustainment requirements.

To make this transition from a conditional to a permanent Green Card, you’ll need to file a petition for removal of conditions. This involves submitting Form I-829, which shows that your investment has met all the required criteria. It’s important to remember that this petition has to be filed within the 90-day window immediately before your conditional Green Card expires.

Eligibility Criteria for Removal of Conditions

To qualify for the removal of conditions, your investment must have created at least 10 full-time jobs for qualified U.S. workers and maintained them for at least two years. To be considered a qualified worker, these individuals must be U.S. citizens, lawful permanent residents, or foreign nationals legally authorized to work in the United States.

You should also make sure that the created jobs meet EB-5 criteria. Full-time positions require at least 35 hours of work per week and are not intermittent, temporary, or seasonal. It’s also important to keep detailed records of all job creation—including payroll records, employment agreements, and tax documents—for proof. Your immigration attorney and regional center team can assist you in this.

Additionally, the investor must show that their money stayed in the project during the required time period, currently for at least two years from the moment when investor funds are made available to the job-creating entity (JCE).

Important Steps and Considerations When Filing Form I-829

Filing Form I-829 is the most important step in the removal of conditions process. To start, your attorney will need to gather documentation that supports job creation, such as payroll records, tax documents, and employment verification. Having this information ready will make the review process move along much quicker.

Make sure that Form I-829 is also completely accurate and includes all necessary supporting documentation. Any mistakes or omissions could cause delays or denials. Timeliness is key here, so file your petition within the specified 90-day window before your conditional Green Card expires.

Common Issues and Challenges

Removing conditions on an EB-5 Green Card can be complex. This section will detail some of the issues you might encounter during this process, as well as how a knowledgeable attorney can help you through them.

Investment Sustainment

EB-5 investors have to show that their investment was sustained throughout the required two-year timeframe. One common issue is that investors’ capital balances, as shown on Schedule K-1s, might appear lower than expected because of accounting methods, even if the investment hasn’t been returned. This can lead to requests for additional evidence (RFEs).

In cases where K-1s aren’t available, like when projects have quit operations, attorneys might rely on financial statements or bankruptcy court records to prove that investors didn’t receive a return on their capital.

Proof of Job Creation

Proving the creation of 10 full-time jobs for qualifying employees can be difficult, especially for direct EB-5 investors. This is even more so if the project has ended, or records are no longer available. To address this, attorneys may conduct payroll audits or use compensation data to prove job creation.

In regional center investments, proving job creation with economic models needs documentation showing spending or income, and USCIS might ask for detailed records. Attorneys can reduce how much documentation is needed by proving only enough job creation to meet the requirements for the removal of conditions.

Redeployment of Capital

Because of lengthy processing times especially before the enactment of the EB-5 Reform and Integrity Act of 2022 (RIA), projects might need to redeploy investors’ capital to meet sustainment requirements. In these cases, RFEs might question whether redeployment meets program rules.

Experienced immigration attorneys can respond to such RFEs by submitting reinvestment documents, bank statements, and evidence tracing the capital. This shows that the funds were properly redeployed and maintained at risk. It is also essential to work with a reputable and transparent regional center to reduce redeployment risks to a minimum.

Help on Your Way to Permanent Residency

The process of removing conditions on EB-5 Green Cards is an important step toward securing your permanent residency in the U.S. However, it requires careful planning and attention to detail. By understanding the eligibility criteria, filing requirements, and the recent changes the RIA brought, you can be better prepared for the whole process. Partnering with an expert team can also significantly help your chances of success.

EB5AN has helped more than 2,300 families from 60 countries relocate to the United States as lawful permanent residents. If you need more information about the removal of conditions process or would like to discuss your options with our EB-5 team, book a one-on-one call today.