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COVID-19 Exacerbates Form I-829 Processing Pain for EB-5 Investors, Mandamus Lawsuits Growing in Popularity
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</h3><h4><i>by <a href=”https://discuss.ilw.com/articles/articles/393955-article-covid-19-exacerbates-form-i-829-processing-pain-for-eb-5-investors-mandamus-lawsuits-growing-in-popularity-by-matt-galati#bio”>
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Matt Galati
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<p>
EB-5 immigration is a long, complicated process. The end of that road is
within sight when an investor files his or her
<a href=”https://www.uscis.gov/i-829″ target=”_blank”>
Form I-829, Petition by Investor to Remove Conditions on Permanent
Resident Status
</a>
, which must be received by the government within the 90 days preceding the
expiration of the conditional Green Card. But unfortunately, the investor
must endure more administrative hardships on the way to unconditional
residency and, if desired, U.S. citizenship. Specifically, USCIS is
illegally delaying Form I-829 adjudications and
<a
href=”https://www.eb5investors.com/blog/common-issues-i829-processing”
target=”_blank”
>
have been doing so for years
</a>
. Combined with COVID-19 closures, this means that many applicants are now
finding themselves without documentation to prove their legal status,
jeopardizing the ability to work, travel, study, and more. Turning to
judicial intervention may be the only remedy.
</p>
<p>
By way of background, the I-829 requires the conditional resident to show
that the minimum capital investment has been sustained and that the
required 10+ jobs have been created
<a
href=”https://www.galati.law/post/filing-i-829s-during-a-coronavirus-economic-downturn”
target=”_blank”
>
or can be expected to be created within a reasonable period of time
</a>
. In the regional center context, Form I-829 filings are heavily templated,
with minor deviations for each investor to show, e.g., the release of
capital from escrow into the new commercial enterprise, the aggregation of
that capital to show job creation, and IRS documentation such as Schedules
K-1 evidencing that the investor did not withdraw the investment.
</p>
<p>
Indeed, across multiple investors in the same project, Form I-829 filings
are much more static than Form I-526 filings which have significant
differences relating to each investor’s unique source of funds. Yet, USCIS
does not provide for an “Exemplar I-829” process,
<a
href=”https://www.eb5investors.com/blog/why-allowing-i829-exemplar-better-eb5″
target=”_blank”
>
even though this would allow for major efficiencies
</a>
. The I-829 has an additional wrinkle in that investors and their family
members must present themselves for biometric appointments. But upon
verification that all elements are met and that the applicants do not have
any disqualifying criminal or immigration violations, each family member is
provided an unconditional Green Card. Approval rates remain quite high.
</p>
<p>
Like I-526 and I-924 filings, Fiscal Year 2019 proved to be abysmal for
USCIS’ Form I-829 productivity.
<a
href=”https://www.uscis.gov/sites/default/files/USCIS/Resources/Reports%20and%20Studies/Immigration%20Forms%20Data/Employment-based/I829_performancedata_fy2020_qtr1.pdf”
target=”_blank”
>
Only 1,733 I-829 petitions were adjudicated, compared to 2,714 the year
prior
</a>
. In the first quarter of this year, only 442 adjudications took place.
Processing times are at the time of this writing pegged at 22-48.5 months,
which is a nonsensical range of time.
</p>
<p>
Beyond that, these delays are illegal. The
<a href=”http://www.law.cornell.edu/cfr/text/8/216.6″ target=”_blank”>
applicable regulation
</a>
mandates USCIS action. It provides that the IPO “must either waive the
requirement for an interview and adjudicate the [I-829] petition or arrange
for an interview within 90 days of the date on which the petition was
properly filed.” Usually, interviews do not take place interview absent
indications of fraud or inadmissibility/removability.
<strong>
So, by reading the law, an investor would be right to assume his or her
permanent Green Card could be in the mail within 90 days of filing, not
two to four years as stated by USCIS’ questionable processing times
</strong>
.
</p>
<p>
The regulations provide that investors and their family members’ status is
extended indefinitely after filing. However, the processing times are so
long, virtually everyone’s Green Card will expire. Necessarily then,
investors and their family members need evidence of ongoing lawful
permanent residency. This is generally proven through the I-829 Receipt
Notice. Historically these have been valid for 12 months and cases were
adjudicated within that timeframe. But seeing processing times jump up,
<a
href=”https://www.uscis.gov/news/alerts/update-form-i-797-receipt-notices-form-i-751-and-form-i-829″
target=”_blank”
>
two years ago USCIS unapologetically extended I-829 receipt notices to
be valid for 18 months
</a>
after conditional Green Card expiration, without even a nod to their
illegally long processing times.
<strong>
This remains problematic because, all of these receipt notices will
expire if an I-829 adjudication is to fall within “normal” processing
times.
</strong>
New receipt notices are not usually generated.
</p>
<p>
So what are investors and families to do? Normally, an applicant with a
pending I-829 can make an INFOPASS appointment and obtain a temporary stamp
in his/her passport showing ongoing status. However, due to COVID-19,
INFOPASS appointments
<a
href=”https://www.galati.law/post/uscis-office-closure-extended-until-june-3-2020″
target=”_blank”
>
have been suspended
</a>
except in emergency circumstances. Investors and their families with
expired I-829s accordingly can find themselves without clear recourse.
</p>
<p>
The repercussions of losing evidence of lawful status can be catastrophic.
Permanent residents could find themselves in a position where they face
major problems for securing employment, international travel, and applying
for state law benefits such as licensures, driver’s licenses, and in-state
college tuition. USCIS’ lack of productivity is hurting families. There is
currently no clear administrative solution to remedy this problem.
</p>
<p>
The alternative may now lie in the courts. Under the <em>Administrative Procedure Act</em>, agencies like USCIS must adjudicate
cases within a reasonable period of time. In the case of I-829
adjudications, the regulations have prescribed an unambiguous deadline – it
must act within 90 days of receipt. The Supreme Court has declared that
“when an agency is compelled by law to act within a certain time period …
a court can compel the agency to act.” <em>Norton v. SUWA</em>, 542 U.S.
55, 65 (2004). Some Circuit Courts have even held that the agency has no
discretion when a statutory/regulatory deadline exists and that judges must
compel adjudications.
</p>
<p> Reprinted with permission.</p>
<hr/><h4>
<a name=”bio”></a>
About The Author<br/>
</h4>
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<p>
<b>Matthew T. Galati </b>is the Principal of The Galati Law Firm. Representing immigrants to the U.S. is personal to Matt as he is the grandchild of and spouse of immigrants.
With his significant experience in immigration law, Matt has handled matters relating to nearly every visa type. Over the past few years, Matt has focused the majority of his practice on EB-5 and E-2 related matters, resulting in the preparation of hundreds of investor petitions, as well as regularly advising U.S. companies utilizing the EB-5 program. In addition, Matt has creatively utilized other visa types to obtain immigration benefits for his entrepreneurial clientele. His client base of the “best and brightest” consist of scientists, musicians, athletes, medical professionals, businessmen and women, and many more.
Prospective clients regularly call upon Matt when immigration processes do not go as expected. His experience as a litigator predate his law school graduation. Matt’s previous representations have included representing clients before federal district court, in adversarial agency practice, appellate proceedings and EOIR. Most notably, Matt served as counsel pro hac vice in the seminal EB-4 Religious Minister case Shalom Pentecostal Church v. Beers, No. 11-4491 (D.N.J. Sept. 16, 2013) which resulted in the elimination of two USCIS regulations that the court held to be illegally published. Matt has also filed several mandamus / unreasonable delay actions which have successfully “broken the backlog” for aggrieved visa applicants particularly arising from EB-5 delays.
</p>
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