COVID-19 Exacerbates Form I-829 Processing Pain for EB-5 Investors, Lawsuits Growing in Popularity
Updated: Jan 31, 2021
EB-5 immigration is a long, complicated process. The end of that road is within sight when an investor files his or her Form I-829, Petition by Investor to Remove Conditions on Permanent Resident Status, which must be received by the government within the 90 days preceding the expiration of the conditional Green Card. But unfortunately, the investor must endure more administrative hardships on the way to unconditional residency and, if desired, U.S. citizenship. Specifically, USCIS is illegally delaying Form I-829 adjudications and have been doing so for years. Combined with COVID-19 closures, this means that many applicants are now finding themselves without documentation to prove their legal status, jeopardizing the ability to work, travel, study, and more. Turning to judicial intervention may be the only remedy.
By way of background, the I-829 requires the conditional resident to show that the minimum capital investment has been sustained and that the required 10+ jobs have been created or can be expected to be created within a reasonable period of time. In the regional center context, Form I-829 filings are heavily templated, with minor deviations for each investor to show, e.g., the release of capital from escrow into the new commercial enterprise, the aggregation of that capital to show job creation, and IRS documentation such as Schedules K-1 evidencing that the investor did not withdraw the investment.
Indeed, across multiple investors in the same project, Form I-829 filings are much more static than Form I-526 filings which have significant differences relating to each investor’s unique source of funds. Yet, USCIS does not provide for an “Exemplar I-829” process, even though this would allow for major efficiencies. The I-829 has an additional wrinkle in that investors and their family members must present themselves for biometric appointments. But upon verification that all elements are met and that the applicants do not have any disqualifying criminal or immigration violations, each family member is provided an unconditional Green Card. Approval rates remain quite high.
Like I-526 and I-924 filings, Fiscal Year 2019 proved to be abysmal for USCIS’ Form I-829 productivity. Only 1,733 I-829 petitions were adjudicated, compared to 2,714 the year prior. In the first quarter of this year, only 442 adjudications took place. Processing times are at the time of this writing pegged at 22-48.5 months, which is a nonsensical range of time.
Beyond that, these delays are illegal. The applicable regulation mandates USCIS action. It provides that the IPO “must either waive the requirement for an interview and adjudicate the [I-829] petition or arrange for an interview within 90 days of the date on which the petition was properly filed.” Usually, interviews do not take place interview absent indications of fraud or inadmissibility/removability. So, by reading the law, an investor would be right to assume his or her permanent Green Card could be in the mail within 90 days of filing, not two to four years as stated by USCIS’ questionable processing times.
The regulations provide that investors and their family members’ status is extended indefinitely after filing. However, the processing times are so long, virtually everyone’s Green Card will expire. Necessarily then, investors and their family members need evidence of ongoing lawful permanent residency. This is generally proven through the I-829 Receipt Notice. Historically these have been valid for 12 months and cases were adjudicated within that timeframe. But seeing processing times jump up, two years ago USCIS unapologetically extended I-829 receipt notices to be valid for 18 months after conditional Green Card expiration, without even a nod to their illegally long processing times. This remains problematic because, all of these receipt notices will expire if an I-829 adjudication is to fall within “normal” processing times. New receipt notices are not usually generated.
So what are investors and families to do? Normally, an applicant with a pending I-829 can make an INFOPASS appointment and obtain a temporary stamp in his/her passport showing ongoing status. However, due to COVID-19, INFOPASS appointments have been suspended except in emergency circumstances. Investors and their families with expired I-829s accordingly can find themselves without clear recourse.
The repercussions of losing evidence of lawful status can be catastrophic. Permanent residents could find themselves in a position where they face major problems for securing employment, international travel, and applying for state law benefits such as licensures, driver’s licenses, and in-state college tuition. USCIS’ lack of productivity is hurting families. There is currently no clear administrative solution to remedy this problem.
The alternative may now lie in the courts. Under the Administrative Procedure Act, agencies like USCIS must adjudicate cases within a reasonable period of time. In the case of I-829 adjudications, the regulations have prescribed an unambiguous deadline – it must act within 90 days of receipt. The Supreme Court has declared that “when an agency is compelled by law to act within a certain time period ... a court can compel the agency to act.” Norton v. SUWA, 542 U.S. 55, 65 (2004). Some Circuit Courts have even held that the agency has no discretion when a statutory/regulatory deadline exists and that judges must compel adjudications.
Indeed, I have represented I-829 applicants who, fed up with seemingly never-ending delays, have turned to the Federal Courts to push USCIS action. So far, these efforts have been successful, although past performance cannot guarantee future results. Nevertheless, we expect mandamus lawsuits to grow in popularity until the agency gets its act together.
For more information on how I-829 adjudication can help you and your family, contact us today.