What is the difference between “conditional” and “unconditional” green cards?
What is a conditional green card?
If my I-526 petition is approved by USCIS, what is the purpose of the Consulate application and interview, and how soon do I get my green card?
Can I apply for EB-5 if I have been rejected or terminated in the past by USCIS for a L-1, E-2, B, or other visa?
After I-526 petition approval, can members of the family interview in different countries?
What must an investor do to maintain their resident status in the U.S.?
What is the difference between permanent residency and citizenship?
Can my green card be taken away from me? How to keep your green card after you get it!
I need to travel out of the U.S. for more than a year. Is there nothing I can do?
How long is a green card valid for?
What is the I-526 petition process?
What is the difference between an I-526 petition and consular processing / adjustment of status?
What is Consular Processing?
What is adjustment of status?
Can an investor gain temporary admission to the United States after investing, after filing the I-526 or during consular processing?
Can an investor travel overseas during I-485 adjustment of status petition processing?
Can an investor seek employment in the U.S. during the I-485 adjustment of status processing period?
How do I get the conditional status removed from my green card?

 

 

 

What is the difference between “conditional” and “unconditional” green cards?

Under the regulations, an investor who is approved for the EB-5 immigrant visa receives a conditional green card, which must be reissued after two years, subject to removal of conditions. Otherwise, the two cards offer the same rights and privileges. The conditional green card program allows the investor and their family to enter the U.S. more immediately, as opposed to waiting 2+ years to be granted their permanent green card.

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What is a conditional green card?

In order to deter fraud, EB-5 Visa immigrant investors, their spouses and dependent children are subject to conditional permanent residence for a two-year period. The EB-5 alien must file a petition to remove the conditions during a 90-day period prior to the second anniversary of the alien’s lawful admission as a permanent resident. The Immigration and Naturalization Services (INS) will examine the new commercial enterprise at the end of the two-year period to determine whether or not the alien has complied with all of the requirements.
When the immigrant investor application is submitted to the INS, it must include the following:

• Evidence to show that a new commercial enterprise has been established, such as articles of incorporation, business license, or evidence of the transfer of the required amount of capital when purchasing an existing business.

• Evidence that the proper amount of capital has been placed at risk for the entire conditional residence period, such as bank statements showing the deposit of funds into the business’s account, evidence of equipment purchased for use in the business; evidence of property transferred to the business, and evidence of money transferred to the business in exchange for shares of stock. This stock cannot include terms requiring the business to redeem the stock at the holder’s request.

• Evidence demonstrating that the capital invested was lawfully gained, such as foreign business registrations, tax returns, or certified copies of criminal or civil judgments, where appropriate.

• Evidence that the investment has created at least ten full-time equivalent jobs, such as tax records, Forms I-9, or if employees have not yet been hired, a detailed business plan demonstrating that the nature of the business will require the hiring of ten employees within two years. If the business is a troubled business, the applicant must submit evidence that the currently existing number of employees will be maintained for at least two years.

• Evidence that the investor will be engaged in the management of the enterprise, such as evidence that the applicant is a corporate officer or member of the board of directors. If the business is a limited partnership, the applicant will be considered to have a management position only if the partnership agreement provides that the applicant will have the rights, powers and duties normally granted to limited partners under the Uniform Limited Partnership Act.

If the application is granted, the alien is given conditional permanent residence and after two years is eligible to file for removal of the conditions. If, in the application to removed conditions, the alien demonstrates that the business was established, that the required amount of capital was invested, and that 10 full-time jobs either have been or will be created, the conditions will be removed and the alien granted full permanent residence and a permanent Green Card is issued. The entrepreneur’s residence may be terminated at the end of the two-year period or earlier if it is found that the business was not established, or was established solely to evade immigration laws or that the requirements were otherwise violated.

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If my I-526 petition is approved by USCIS, what is the purpose of the Consulate application and interview, and how soon do I get my green card?

Upon approval of I-526 Petition, you must wait for notification from the US Consulate in your home country to prepare documents for the Visa interview. The purpose of this procedure is to ensure that the investor and his or her family undergo medical, police, security and immigration history checks before the conditional permanent resident visas are issued. At the interview, the consulate officer may address these issues and information printed on the I-526 application, including asking the investor to summarize the nature of his or her immigrant investment. If the investor and his or her family are in the United States, then you may apply for adjustment of status by filing form I-485, and supporting documents, the application may be filed at the appropriate office of the USCIS. It will be beneficial to consult your immigration attorney in preparation for the consulate interview.

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Can I apply for EB-5 if I have been rejected or terminated in the past by USCIS for a L-1, E-2, B, or other visa?

Rejection in the past does not disqualify the applicant, unless the reasons related to immigration fraud or other major problems. It is most important that all criminal, medical, or U.S. immigration history problems be disclosed to the limited partnership and legal counsel in advance of application.

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After I-526 petition approval, can members of the family interview in different countries?

Family members can interview in different countries. The country of origin or where the family has current ties is the standard interview site. Often one member of the family is located in another country, such as a student attending school in the U.S. The student does not have to return to the country of origin and can adjust status in the United States at the district office of the USCIS.

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What must an investor do to maintain their resident status in the U.S.?

The first requirement of any investor after they receive the visa at the United States overseas consulate office is to enter into the United States within 180 days of visa issuance from the consulate. The investor must then establish residency in the United States. Evidence of intent to reside includes opening bank accounts, obtaining a driver’s license or social security number, paying state and federal income taxes, renting or buying a home. The United States resident may work overseas if required based upon the nature of the business or profession. However, all permanent residents must remain in the US for more than 6 months each year, or they may be deemed to have abandoned their permanent residence status.

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What is the difference between permanent residency and citizenship? 

• Once you obtain a green card, and become a legal permanent resident, you have most of the rights and obligations of U.S. citizens, except that you cannot vote and are not entitled to some public benefits. You are subject to the same tax filing requirements and entitled to the same tax rates and deductions as U.S. citizens.

• “Abandonment of residency” rules are an important restriction to which legal permanent residents are subject. Abandonment can occur when you are outside of the United States for more than six months without informing the Immigration and Naturalization Services of your plans in advance

• One of the most important rights legal permanent residents possess is the right to obtain U.S. citizenship after five years. There are two ways to become a U.S. citizen. One is by being born in the U.S. or being born to a U.S. citizen. The other way is by naturalization. The first step in becoming a U.S. citizen through naturalization is to become a Legal Permanent Resident (LPR). Being an LPR for 5 years is one of the basic requirements for qualifying the naturalization. A second requirement is being physically present in the U.S. for 30 months during the 5 years prior to the naturalization application. Once becoming a U.S. citizen, an individual is entitled to benefits including the right to vote and hold public office.

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Can my green card be taken away from me? How to keep your green card after you get it!

Once you receive a green card, there are only two conditions required to keep it for life.

• First, you must not become removable or inadmissible. The most common way of doing this is to be convicted of a serious crime.

• The second requirement is that you not abandon the United States as your permanent residence. Abandonment can occur when you are outside of the United States for more than six months without informing the Immigration and Naturalization Service of your plans in advance. It is a common misconception that to keep your green card all you need to do is enter the United States at least once a year. The fact is that if you ever leave with the intention of making some other country your permanent home, you give up your U.S. residency when you go. On the other hand, remaining outside the United States for more than one year does not mean you have automatically given up your green card.

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I need to travel out of the U.S. for more than a year. Is there nothing I can do?

You can apply for a reentry permit (on form I-131) before you leave the US. You can depart before the reentry permit is approved. With such a reentry permit, you can return to the US even after one year until the reentry permit’s expiration date. Reentry permits are issued for two years. You cannot renew a reentry permit, but you can return to the US for a short time and apply for a new one. The second such reentry permit will be granted for two years ago, but subsequent ones may only be approved for one year at a time.

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How long is a green card valid for? 

There are several answers to this question.

• If you received your Green Card through marriage, and have not been married for two years when you got your Green Card, at first you will be issued a conditional Green Card that is good for two years.

• If you received your Green Card through investment (EB-5), at first you will be issued a conditional Green Card that is good for two years.

In both cases, you must apply for removal of the condition within 90 days before the two years are up. Once that is approved, you have a regular unconditional Green Card. If you apply either too early or too late, you have a problem and should consult with an attorney for advice. If you do not have the condition removed, the Green Card will become invalid at the end of two years, and your permanent resident status will be terminated.

Unconditional Green Cards are good for ten years. This does not mean that after ten years, you stop being a legal permanent resident – only the card itself becomes invalid. You must apply for a new one using form I-90. Without a current Green Card, you cannot use the Green Card to travel out of the USA, and you also cannot use the Green Card as evidence that you are permitted to work.

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What is the I-526 petition process?

For investors seeking lawful permanent residence, the first step in the process is to file an I-526, Petition for Alien Entrepreneur, together with accompanying evidence in support of the program’s requirements. Citizenship Immigration Services adjudicates I-526 petitions by reviewing the following criteria, among others:

• New Commercial Enterprise: There must be evidence that shows that the enterprise in which the investor has invested their funds was created or restructured after 1990, and is authorized to transact business.

• Investment Capital: The petition must be supported by evidence that the petitioner has invested (or is actively in the process of investing) the minimum required capital. USCIS expects these funds to be at risk, connoting an irrevocable commitment to the enterprise. The funds must be used by the enterprise exclusively to create employment.

• Source of Capital: Evidence must support the legal acquisition of capital. Funds earned or obtained in the United States while the investor was in unlawful immigration status will not be deemed to have been lawfully acquired.

• Managerial Role: The investor is expected to participate in the management of the new enterprise by assisting in the formulation of the enterprise’s business policy, by participating in one or more of the activities permitted in section 3423(b) of the Vermont Revised Uniform Limited Partnership Act (VRULPA), and as otherwise set forth in the Limited Partnership Agreement. Limited partner investors in an EB-5 enterprise must have all the rights and duties usually accorded to Limited partners by the Uniform Limited Partnership Act (ULPA), as adopted in Vermont as VRULPA. There may be a conflict for investors seeking to maintain the protections accorded to Limited partners under VRULPA and the immigration law requirement that EB-5 investors must be involved in management. Each investor should seek competent counsel to assess this risk.

• Amount of the Investment: The petition must be supported by evidence that the required minimum sum has been invested. This sum may be reduced currently from $1,000,000 to $500,000 if the enterprise is located in a Targeted Employment Area (TEA).

• Employment Creation: There must be evidence that 10 jobs will be created on account of each EB-5 investment. If the investor invests his or her funds in a designated Regional Center, he or she is also eligible to count indirect or induced jobs toward this total.

The I-526, Petition for Alien Entrepreneur will be approved only if USCIS is satisfied that the foregoing criteria have been met. The determination of whether these criteria have been established is within the discretion of USCIS. It is also within the power, if not the discretionary authority, of USCIS to seek information about other aspects of the investment and the relationship of the investor to the enterprise.

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What is the difference between an I-526 petition and consular processing / adjustment of status?

Approval of the I-526 Petition means that the alien and the alien’s spouse and children under the age of 21 years may apply for admission as conditional lawful permanent residents (CLPR). Approval of the I-526 Petition does not mean that the investor has been granted admission to the United States as a lawful permanent resident. Approval of an I-526 only designates the investor as a qualified alien entrepreneur.

The application for admission is a separate and subsequent process that concerns issues common to all aliens who wish to achieve permanent residence in the United States. Admission as a conditional lawful permanent resident may be sought using one of two methods: Consular Processing or adjustment of status.

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What is Consular Processing?

Consular processing is designed for aliens who are living outside of the United States, are ineligible to adjust status, or who prefer to process at a consulate for strategic reasons or as a matter of convenience. Typically, the consular post, which is chosen at the time the I-526 Petition is filed is in the country of most recent permanent residence. In very limited instances a different consular post may process the petition. Consulates are the entity of the U.S. government that issues visas. The visa is issued for an immigration status that a consul believes the visa applicant is qualified to hold.

In an EB-5 case, the visa may be sought from a consulate only after the investor’s I-526 petition is approved. Approval of the I-526, Petition does not by itself establish admissibility. An alien is admissible who proves that no grounds of inadmissibility exist and has proper travel documents. Investors should consult with immigration counsel to determine if any grounds of inadmissibility may affect the investor’s admission or the admission of the investor’s spouse or children to the United States and if a waiver is available for such grounds of inadmissibility.

Consular processing begins when USCIS transmits the approved alien’s I-526 petition to the National Visa Center (NVC). At appropriate intervals, the NVC issues instructions and appointment packages and requests required documents and information. In time, the alien will be instructed to obtain fingerprints and a physical examination and to report to a consular interview. Visa applicants should allow about six to twelve months to complete consular processing, although times for processing vary greatly among consular posts.

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What is adjustment of status?

The Adjustment of Status (AOS) procedure is designed to permit aliens who have been admitted to the United States as non-immigrants or who have been paroled into the country to apply for admission as permanent residents without leaving the country. These non-immigrants must establish that they are admissible permanently, meeting the same standards as aliens who use consular processing to obtain a permanent resident visa. Aliens seeking AOS must also comply with requirements peculiar to the AOS process. Aliens who do not meet these additional requirements will be required to use consular processing to obtain a Conditional Lawful Permanent Resident (CLPR) visa, which will necessitate a departure from the United States. Aliens admitted in certain non-immigrant statuses may encounter more difficulties adjusting status than aliens admitted in other non-immigrant statuses. Investors should consult with immigration counsel regarding these issues before the I-526 Petition is filed.
An alien investor or the investor’s spouse or children who are eligible for CLPR may not be eligible for AOS if they:

• Are or were employed in the U.S. without authorization

• Were not in lawful status on the date their AOS application was filed or if they failed to maintain lawful status thereafter

• Were ever out of status during earlier admissions to the U.S.

• Are admitted in certain non-immigrant statuses, such as A, G, E or J (unless the two-year foreign residency requirement does not apply or a waiver of the requirement has been obtained)

• Have been in removal proceedings in the ten years prior to seeking AOS

• Were admitted under the visa waiver program at the time AOS is sought

• Obtained CLPR as the spouse of a U.S. citizen or as the son or daughter of a spouse of a U.S. citizen and have not abandoned this CLPR prior to seeking AOS

• Obtained admission to enter the U.S. as a non-immigrant by misrepresenting that they would depart the U.S. when their temporary period of admission expired. Unless the adjustment applicant is admitted to the U.S. in H-1b, L-1 or O-1 non-immigrant status, this misrepresentation is deemed to have occurred if the alien investor, admitted as non-immigrant, demonstrates immigrant intent within 60 days after admission. Making the investment, filing the I-526 or applying for AOS within this 60 day period may be viewed by CIS as evidence of immigrant intent and may result in the denial of AOS.

There may be additional reasons why an alien may not adjust status, which is a benefit granted at the discretion of USCIS. There is no appeal from a denial of AOS; the only relief available is a request to re-open or re-consider the AOS application. Investors should consult with immigration counsel to determine if they, their spouse and their children are eligible for AOS. 
During AOS processing, the applicant will be required to submit a medical examination and will receive instructions from USCIS regarding biometric data collection and an interview. The interview may be waived by USCIS.

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Can an investor gain temporary admission to the United States after investing, after filing the I-526 or during consular processing?

Admission to the United States as a visitor or in most other non-immigrant statuses is predicated upon the intent to depart the country at the end of the period of admission. This non-immigrant intent may be difficult to establish once an investor has paid funds into an EB-5 project or files an I-526, as the sole purpose of this investment and petition is to establish that the investor qualifies within a program that awards lawful permanent residence. Investors should consult with competent counsel to determine how best to manage temporary (non-immigrant) admission to the United States subsequent to making the investment or filing of either of these cases.

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Can an investor travel overseas during I-485 adjustment of status petition processing?

An alien investor who leaves the United States without advance permission while an AOS application is pending is deemed to have abandoned that application unless the applicant has been admitted in and continues to hold valid H or L non-immigrant status pending adjudication of the AOS application. 
Advance permission to depart the U.S. is issued routinely if the alien articulates a bona fide need to travel. It is not necessary to demonstrate an emergent need to travel; any purpose not contrary to law is usually deemed sufficient. Advance permission, known as Advance Parole, is usually granted for multiple entries during the time required to complete the AOS process, but not longer than one year. It may be necessary to re-apply for Advance Parole if the AOS process is not complete within a year. Advance Parole is not available to aliens who are outside the U.S. It is important for AOS applicants who wish the right to travel to make application for Advance Parole while they are in the U.S. They must remain in the U.S. until Advance Parole is granted to avoid abandonment of the AOS application. Advance Parole applications may take about 60-90 days to be granted. Processing times may be longer if an applicant is subjected to extended background checking. In demonstrated emergent circumstances, an AOS applicant may seek expedited Advance Parole. 
Alien investors admitted to the United States in any non-immigrant status who have obtained Advance Parole during the AOS process should consult with immigration counsel before traveling. Re-admission to the U.S. using the Advance Parole document may jeopardize the non-immigrant status of the alien’s family members who did not travel. The consequences, if any, of this situation should be examined prior to travel.

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Can an investor seek employment in the U.S. during the I-485 adjustment of status processing period?

Applicants for AOS who wish to work in the United States must obtain employment authorization unless they have been admitted to the U.S. in a non-immigrant status that confers employment authorization and does not end before AOS is granted. It should be noted that self-employment also requires employment authorization. Employment without authorization at any time in the U.S. is a violation of immigration status and may jeopardize the right to adjust status.

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How do I get the conditional status removed from my green card?

Approval of an AOS application or the grant of an EB-5 visa followed by entry into the U.S. in EB-5 status means that the investor and the spouse and qualified children of the investor have been granted Conditional Lawful Permanent Residence (CLPR) for two years. After two years, the conditions must be removed so that the aliens may reside in the U.S. indefinitely. Failure to remove the conditions results in the termination of CLPR status and will likely result in the commencement of removal proceedings.

Removal of conditions is sought by the filing of an I-829 petition in the 90-day period immediately preceding the second anniversary of the grant of CLPR status. In support of the petition, the alien investor must demonstrate full and continuous investment in the new commercial enterprise as well as the creation of 10 full time equivalent jobs as a result of the investment and consistent with the investors I-526 petition. The General Partner of the Project will provide documentation upon request by the investor as reasonably necessary and available in support of investor’s I-829 petition, aliens admitted in Conditional Lawful Permanent Resident (CLPR) Status remain in valid status even if the petition is not decided before the expiration of the initial two year conditional period of admission. CLPR is usually extended in one-year increments or until the petition to remove conditions is adjudicated.

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