Adjusting Status in the U.S. for EB-5 Investors

The process of adjusting status from a conditional permanent resident (CR1) to a lawful permanent resident (LPR) is a critical step for EB-5 investors who have successfully navigated the initial conditional phase of their immigration journey. This adjustment confirms the viability of the investment and the creation of the required jobs, leading to full green card status.

Understanding the I-829 Petition

The primary mechanism for adjusting status after the conditional period is filing Form I-829, Petition by Alien Entrepreneur. This petition must be filed within the 90-day window preceding the second anniversary of the conditional green card issuance.

Key Requirements for I-829 Approval

Successful adjudication hinges on demonstrating that the EB-5 investment has met all statutory requirements. These include:

• Capital Maintenance: Proof that the required minimum capital investment (typically $800,000 or $1,050,000) remains fully committed to the new commercial enterprise (NCE).
• Job Creation: Evidence that at least ten qualifying full-time jobs have been created or directly supported by the investment.
• Sustained Operations: Demonstration that the NCE has been in continuous operation since the initial investment.

Evidence of Job Creation

Job creation evidence is often the most scrutinized area. Acceptable documentation includes:

1. Payroll records and W-2 forms for qualifying employees.
2. IRS Form 941 filings.
3. Detailed organizational charts showing full-time status (defined as 35+ hours per week).

The Adjustment Process Timeline

Once the I-829 is filed, the investor enters a waiting period. While the I-526/I-526E processing times fluctuate, the I-829 processing can also take a significant amount of time. During this period, the investor’s conditional status is automatically extended if the I-829 was filed on time.

Filing the I-829 on time ensures that the investor maintains lawful presence in the U.S. even if the conditional period expires before the petition is adjudicated.

Responding to Requests for Evidence (RFEs)

It is common for USCIS to issue Requests for Evidence (RFEs) concerning capital traceability or job counts. Investors must respond promptly and comprehensively. Failure to address an RFE adequately can lead to denial.

For example, an RFE might question whether certain employees meet the full-time definition, requiring the submission of detailed time sheets or employment contracts. The burden of proof rests entirely on the petitioner.

Post-Approval Steps

Upon approval of Form I-829, the investor and their dependents (spouse and unmarried children under 21) are granted lawful permanent resident status. The next step is typically applying for the removal of the conditional basis on their green cards, which usually involves filing Form I-90, Application to Replace Permanent Resident Card, to receive the standard 10-year green card.

The key takeaway is meticulous documentation. Every dollar invested and every job created must be traceable using official business and government records.

Consulting with an experienced immigration attorney specializing in EB-5 compliance is crucial for navigating the complexities of the I-829 submission.