EB5 Investors Magazine Volume 2 Issue 2 | Page 35

The immigrant visa / adjustment of status process
After filing the I-526 petition , applicants — either in the United States through adjustment of status or in their home country through consular processing — file for permanent residence .
At the time of filing his I-526 , the investor in our case study was living in the United States holding temporary non-immigrant status . However , the length of the adjudication of the I-526 petition caused the investor ’ s lawful status in the United States to lapse without the possibility of an extension , forcing the investor to return to his home country and process for an immigrant visa at a consulate abroad . Because he had originally intended to adjust his status in the United States , the investor had to file an additional form ( I-824 ) to notify the National Visa Center and the relevant U . S . Consulate that he now wished to process at a consulate abroad . This added additional wait time to the normal six to eight months it takes for an EB-5 applicant to receive an immigrant visa at a consulate abroad .
The lesson : In order to avoid delays with an I-824 application , it is best to indicate on the I-526 petition that the applicant will process for an immigrant visa at a consulate abroad , even if the investor is eligible for adjustment of status . By doing so , in the event the investor wants or needs to process for an immigrant visa , the I-824 application will not be required . If the investor wishes to process through the adjustment of status process , they can do that without filing an I-824 as well .
Applicants in the United States , such as F-1 students , should be advised of the effect on nonimmigrant status before filing an I-526 petition . The length of I-526 petition processing times may cause a lapse of lawful status . As an I-526 demonstrates immigrant intent , it can disqualify applicants from receiving or renewing nonimmigrant visas during the pendency of their I-526 petition .
an immigrant visa . EB-5 applicants who file their I-526 petition first may still end up behind later-filed EB-5 investors in the “ job line ” due to delays at the consular processing or adjustment of status stage . If there is a shortfall in jobs created at the I-829 petition stage in that scenario , the investor may lose out .
The lesson : Counsel should ensure that the investor understands how jobs are created and how job creation is allocated among investors in the new commercial enterprise .
The effect of immigrant visa delays
Another issue that can affect investors is the rigorous background check all immigrant visa applicants must undergo at the immigrant visa or adjustment of status stage . Investors , especially those native to Middle Eastern countries , may confront a situation where they appear on a U . S . watch list because they share a name with an individual barred entry to the United States . Security delays may also arise for Chinese investors who may have worked with sensitive technologies in China or who were former members of the Communist Party . These issues can cause significant delays , and in some cases , the State Department can refuse to act on a pending immigrant visa petition for several years . In our example , the investor ’ s immigrant visa application was stalled over three years in security clearance checks .
These sorts of delays can have serious effects on an EB-5 investor ’ s conditional permanent residency . For instance , many projects determine job allocation by the date an EB-5 investor receives approval of a Form I-485 or enters the United States on
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I-829 petition issues
A late-filed I-829 petition demonstrates the need to keep accurate records regarding each EB-5 applicant in a project and also adequate project business records . In the case of our investor ’ s project , job creation was demonstrated through tenant occupancy . The significant lag time between the other applicants and this investor required the regional center to refresh their job creation evidence . USCIS required evidence of the tenants at the time of this investor ’ s I-829 petition , which occurred three to four years later than all other investors in the project . If there was a shortfall of tenants in the building , this investor may have had the I-829 petition denied .
Other issues that could arise with late-filed I-829 petitions typically occur with a “ loan-model ” project . The typical EB-5 loan is usually outstanding for four to six years . If there is a security clearance delay , the EB-5 applicant may receive conditional permanent residency months or years after the date of their I-526 petition approval . The EB-5 loan could mature and
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