I-829: New Adjudication Standards
In the EB-5 Visa process there are two key petitions. The first is the I-526 or I-526e, which is the initial petition for the Conditional Green Card and the second is the I-829 to remove the conditions from that Green Card. USCIS primarily reviews the Source of Funds used for the investment during their I-526e adjudication, while traditionally their I-829 review solely revolves around whether the investment met the 2-year sustainment requirement and created the 10 jobs.
However, there has been a recent shift in I-829 adjudication, where USCIS is now looking back at investors’ Source of Funds despite prior approval at the I-526e stage. Investors are seeing these SOF related RFEs across a wide range of funding categories due to USCIS’s increased scrutiny. SOF review at the I-829 stage runs contradictory to USCIS’s own policy manual which states “as a general matter, USCIS does not reexamine determinations made earlier in the EB-5 process, and presumes that such earlier determinations were properly decided.” (Volume 6, Part G, Chapter 3 of the USCIS Policy Manual). Furthermore, by readjudicating old approvals, USCIS is adding delays to an already slow review process.
What we have seen from these RFEs is that they are not necessarily a guarantee of future denial. Investors who are able to provide at least some evidence in support of the legality of their funds have seen success upon review by USCIS. In one such case, we had an investor face scrutiny for using an unofficial currency exchanger. We were able to provide proof to USCIS that this exchanger ran a legal business and had the clear ability to be able to legally exchange those funds. USCIS found this evidence sufficient and the client’s I-829 was approved.
Of course, not all I-829s are going to be approvable under this new increased scrutiny. That brings investors to the I-829 denial stage. Denial is not necessarily the end of the line when it comes to EB-5. An investor who has had their I-829 denied can still potentially appeal their denial, sue in federal court, and fight their decision in immigration court removal proceedings. In some cases there is also Federal Court precedent, which can also be used to argue against USCIS’s new oversweeping review.
Li & Associates is a long standing and experienced law firm with expertise across the entire EB-5 field and beyond. If you have questions, contact one of our attorneys here.