EB5 Investors Magazine "Top 25 issue" Volume 9 Issue 1 - Page 9

to whether the facts and information described in subsection ( d )( 1 ) of this section and alleged in the petition are true with respect to the qualifying commercial enterprise .” 1 The “ decision on the petition shall be made within 90 days of the date of filing or within 90 days of the interview , whichever is later .” 2 Taken together , this sets up an enforceable , mandatory adjudication timetable .
THE REALITY OF USCIS ’ I-829 INTERVIEW
The Congressional Research Service has stated plainly : “ USCIS is required by statute to interview immigrant investors within 90 days of submitting Form I-829 , but the agency also has the authority to waive that requirement .” The same report noted that the USCIS interviewed only 44 Form I-829 applicants in FY 2018 , despite it deciding 2,714 Forms I-829
" USCIS interviewed only 44 Form I-829 applicants in FY 2018 , despite it deciding 2,714 Forms I-829 during this time period , meaning USCIS only interviewed 1.6 % of applicants ."
on their passports every year after the automatic extension ( 18 months or 24 months ) expires , frustrating driver ’ s license renewals , work authorization , and international travel . Moreover , it impacts their ability to naturalize and become U . S . citizens .
One solution to compel USCIS to finalize a Form I-829 adjudication within a reasonable amount of time , is to file a lawsuit in federal court under the Administrative Procedures Act . This litigation strategy is working . In the past 18 months , there has been hundreds of lawsuits on behalf of conditional permanent residents , and , after negotiations with government attorneys and some motion practice , USCIS often agree to adjudicate . Of course , a lawsuit shouldn ’ t be filed without expecting a fight from the government . It has numerous tools to postpone an order by a federal judge who ruled that USCIS ’ delays are unreasonable . This includes motions to dismiss , motions to sever and motions to transfer . Because of these obstacles , working with experienced litigation attorneys who understand the complexity of EB-5 is critical .
WILL USCIS RETALIATE AGAINST MY LITIGATION ?
Another consideration related to the filing of a lawsuit is retaliation – a question that nearly every potential plaintiff asks during an initial consultation . USCIS certainly has the authority to request additional documents or information or clarifications if they believe that the Form I-829 does not contain all of the evidence required to remove conditions . However , this author has not seen explicitly unreasonable or during this time period , meaning USCIS only interviewed 1.6 % of applicants .
Yet , in nearly every I-829 case , USCIS has violated the statutory deadline because it took no action within 90 days of a filing ’ s receipt – not scheduling an interview , not waiving an interview deadline or interview , and not making a final decision .
In fact , I-829 processing times continue to climb . USCIS recently updated its Processing Times page to state that 80 % of Form I-829 cases are adjudicated in 56.5 months . In the first quarter of FY 2022 ( October 1 , 2021 to December 31 , 2021 ), USCIS adjudicated 326 Form I-829s . Over 11,000 Form I-829 petitions remain pending .
CONSEQUENCES FROM THE EB-5 DELAYS
Conditional green card holders are suffering with the bureaucratic challenges that arise from USCIS delays . It damages their ability to live in the United States and to fully derive the benefits of their conditional lawful permanent residency . These individuals must obtain Form I-551 stamps
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