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EB-5 Processing & Procedures


FAQs on step-by-step procedures involved in all phases of EB-5 processing

[Q] Can I-485 be denied after I-526 petition is approved?

[Q] I heard from someone that in one case, the USCIS California Service Center (CSC) initially approved the foreign national's EB5 petition. Once the CSC received the I-485, it issued a Notice of Intent to Revoke (NOIR) the previously approved I-526 immigrant petition. The CSC deemed the response to the NOIR as unsatisfactory due to the evidence provided and issued a Notice of Revocation for the previously-approved petition. Can this kind of thing happen to me also?

First, I don't think this occurred recently, but this sort of decisionsdid occur from time to time many years ago. In the past, one of the problems with EB-5 Program was that after I-526 petitions were approved often by another Service Center, CSC (where the applicant resided and had jurisdiction over the filed I-485 case) decided that the previous examiner mistakenly approved I-526 petition.

[Q] How many examiners at CSC work on EB-5 related applications, such as I-526 and I-829s?

As of May 4, 2011, we think there are around 30 CSC examiners working on EB-5 related applications, and USCIS' goal is 5 months for I-526 and under 6 months for I-829s.

However, we do not know whether some EB-5 examiners are rotated to other divisions, etc.

[Q] I hear about the RC Program being temporarily extended several times. Will these extensions affect those who obtained CPR?

[Q] I hear about the Regional Center Program's sunset date being extended temporarily several times. Will the success or failure of extensions adversely affect persons like me who already obtained conditional permanent resident status through a RC EB-5 Program?

No, not at all. Since you and your family already obtained CPR status, this sunset or extensions will not have any adverse effect on your ability to file I-829 case.

Currently, the RC Program is undergoing temporary extension until it can be extended for either 5 years or made permanent. We believe at minimum 5 years extension of RC Program will take place before end of 2009.

[Q] What are possible USCIS responses or outcomes to the I-526 immigrant petition submission?

First, USCIS (specifically, California Service Center) can approve your I-526 immigrant petition, and send you an Approval Notice to prove the approval.

[Q] After I-526 petition approval, how long does it take to obtain Immigrant Visas at the Embassy?

Depends on the country of your residence. After you receive an approval notice of I-526 immigrant petition, it can take anywhere between 4 to 7 months to obtain Immigrant Visas for you and your family members.

[Q] When hiring a US immigration attorney, is it important that the immigration attorney be an AILA member?

As some of you may already know, "AILA" stands for the American Immigration Lawyers Association. I would say most "serious" US immigration attorneys do belong to AILA, but I can imagine very experienced U.S. immigration attorneys who choose not to belong to AILA, simply because they know enough about their area of practice and they can keep up with new developments on their own.

[Q] Why is it important that I-526 petitions be adjudicated in a prompt manner?

One reason is that only after I-526 petition approval, can EB-5 investor proceed with either IV processing or I-485 adjustment. Second reason is that unless I-526s are approved, the investors' moneys deposited in the designated escrow cannot be released to the Limited Partnerships acting as a New Commercial Enterprise (the "NCE") for EB-5 projects. This means the release of the funds will be delayed, causing sometimes insurmountable problems. The EB-5 projects, involved with real projects in a real world, with real commercial constraints, cannot afford to keep waiting for a portion of their project financing.

[Q] What is the immigrant visa interview procedure like if I do decide to do consular processing?

Most EB-5 cases probably choose to do consular process for many reasons we will not address here. The procedure is the submission of necessary documents and showing up at the Immigrant Visa section at the American Embassy in your country of residence and submit the docs, do fingerprints and then stand at the bank counter like window and answer consular officer's questions for about 10 minutes. That's it. But the waiting in between can take total of 1 to 3 hours.

[Q] How many months prior to my planned immigration date should I apply for EB-5 case?

Our answer is around 1.5 years before your estimate immigration date. This is to give you more than enough time. Keep in mind that although it is easy to delay the processing, it's hard to speed up the processing. So, an early start is important. Besides, who knows if and when the $500,000 USD TEA amount will be raised from $500,000 to a higher amount?

[Q] If my I-829 is denied for some reason, can I take an appeal from USCIS' decision to deny?

Unlike I-526 petition procedure, if I-829 is denied, there is no per se appeal right, but at deportation hearing, USCIS will have the burden to prove by preponderance of the evidence that they were right to deny the I-829 petition. Because you have certain rights in the deportation hearing, USCIS will make sure you did not meet the requirements before denying any I-829s.

[Q] Is there a regulation that says I-829 should be decided within 3 months from the filing date?

Yes, below is the language. However, the below regulation is not being followed.

(1) The decision on the petition [I-829] shall be made within 90 days of the date of filing or within 90 days of the interview, whichever is later.

Ironically, if you do not file I-829 within the 90-days window period, then your CPR will terminate, but if USCIS does not adjudicate I-829 within 90 days as stated above, nothing happens.

The above regulatory language clearly shows that the Congress (and actually, USCIS itself) at one time thought it was perfectly reasonable or necessary that I-829 be decided within 90 days from the filing date.

[Q] Can I contact CSC regarding status of pending EB-5 related applications, such as I-526 and I-829?

No, there is no telephone number or email address at CSC itself. However, you can check status of your EB-5 case by going to: www.eb-5center.com/Case_Checker.

If you have any other questions regarding your EB-5 case, or if you have not received a decision from USCIS within the current processing time listed, you can contact the USCIS Customer Service at (800) 375 – 5283 or 1-800-767-1833 (TTY) and speak to a live person, but they cannot tell you the reason why your case is taking longer, but they do relay your message to CSC.

[Q] How many examiners at CSC work on adjudicating EB-5 related applications?

According to USCIS, there are 10 examiners who work solely on EB-5 related applications, such as I-526, I-526-based I-485s, I-829s and finally Request/Proposal to receive Regional Center designation to carry on business as a regional center. Actually, that's not that many given the fact that delays will in real world make it very hard to start bona-fide EB-5 projects.

Even though the filing fees for EB-5 related applications are relatively high, the filing fees received from EB-5 cases do not go directly towards improving the operation and adjudications of EB-5 related cases. We really feel that a faster processing would have a great effect of encouraging more EB-5 cases to be filed even during this tough economic times.

[Q] I obtained CPR status 4 months after my mother (investor) obtained CPR. Can I apply for I-829 together?

Under the EB-5 law, spouse and dependents can be included in the same I-829 condition removal application only if they obtained CPR status within 3 months period after the Principal investor obtained CPR status. That means you have to apply for I-829 separately, and under the current EB-5 law, you have to pay separate filing fee.

[Q] I entered the U.S. on a visa waiver program. I have I-526 petition approved. Can I file I-485 in the U.S.?

First, all visa waiver entrants are given only 3 months of stay, and they cannot change status or adjust in the United States, even if they have an immigrant petition approved and they are maintaining their status in the U.S. That's the benefits the visa waiver entrants forego in exchange for visa waiver benefits.