The EB-5 Reform and Integrity Act of 2022 (“RIA”) brought welcome updates to the EB-5 Program, including priority processing for “rural area” investments. That’s led to a noticeable—and exciting—trend: much faster adjudication of “rural area” EB-5 petitions, particularly for investors concurrently filing I-526E Petitions and I-485 Applications (adjustment of status).
We have received inquiries from EB-5 investors regarding the impact of the faster adjudication timelines on their I-829 Petition eligibility and are pleased to address some of the salient matters below.
When Must an Investor File the I-829 Petition?
EB-5 investors who are conditional permanent residents must file an I-829 Petition to remove the conditions on their conditional permanent resident status within 90 days prior to the 2-year anniversary of the date on which such status was granted (i.e., either following the approval of an investor’s adjustment of status application or following an EB-5 investor’s admission into the United States on an EB-5 immigrant visa).
USCIS will send a receipt notice to conditional permanent residents who properly file a Form I-829. This receipt notice serves several important purposes: first, it proves that USCIS actually received the I-829 Petition; second, it serves as evidence of USCIS’ extension of the validity of the conditional permanent resident’s status for the time period specified in the notice (currently, an initial extension period of 48 months, which is subject to further extensions as needed); and third, it may be used to prove employment authorization and authorization to return to the United States after temporary foreign travel.
A failure to timely file the I-829 Petition will result in the automatic termination of the EB-5 investor’s conditional permanent resident status and the initiation of removal proceedings. Nevertheless, USCIS may accept a late-filed I-829 Petition if the EB-5 investor demonstrates to USCIS’ satisfaction that the failure to timely file was for good cause and due to extenuating circumstances.
What Evidence Must be Filed with the I-829 Petition?
The I-829 Petition serves as the final step for EB-5 investors to obtain 10-year permanent resident status. Each I-829 Petition must demonstrate 4 key elements:
- A new commercial enterprise was established;
- The EB-5 investor invested or was actively in the process of investing the required amount of capital;
- The EB-5 investor sustained his or her capital investment for the requisite period of time; and
- The EB-5 investor’s capital investment facilitated the creation of at least 10 jobs within a reasonable time.
A properly filed I-829 Petition should be supported by a detailed memorandum and well-organized supporting documentation.
It is worth noting that USCIS policy guidance provides that not all of the goals of capital investment and job creation need to be fully realized before filing the I-829 Petition. Rather, an EB-5 investor must demonstrate in the I-829 Petition filing that it is more likely than not that the EB-5 investor is in substantial compliance with the capital requirements and that the jobs will be created within a reasonable time.
As a practical matter, USCIS may follow up in the form of a request for evidence or clarification to confirm that the requirements have been satisfied prior to adjudicating the I-829 Petition. For example, USCIS may follow up to confirm that an EB-5 investor’s sustainment period (as discussed further below) has been satisfied and/or that the minimum required number of jobs have been created. These types of inquiries are fairly common, and CanAm has successfully assisted EB-5 investors with such responses on numerous occasions.
How Long Does an EB-5 Investment Need to be Sustained for the I-829 Petition to be Approved?
As noted above, a key requirement of the I-829 Petition is a showing that the EB-5 investor has continuously sustained his or her capital “at risk” for a minimum period of time – this period is commonly referred to as the “sustainment period.”
Current USCIS guidance distinguishes the length of an EB-5 investor’s sustainment period depending on whether such EB-5 investor filed a pre-RIA I-526 Petition or a post-RIA I-526E Petition, as follows:
- Pre-RIA (for I-526 Petitions filed before March 15, 2022): current USCIS guidance indicates that an EB-5 investor who filed his or her I-526 Petitions prior to the enactment of the RIA must sustain their investments throughout the 2-year period of his/her conditional permanent residence (that is, at least 2 years from the date the EB-5 investor obtained conditional permanent residence), and that an EB-5 investor does not need to maintain his or her investment beyond this sustainment period.
- Post-RIA (for I-526E Petitions filed on or after March 15, 2022): pursuant to the RIA, EB-5 investors must show that their capital investment must be “expected to remain invested for not less than 2 years.” While the RIA does not explicitly specify when the 2-year period begins, USCIS has indicated on its questions/answers website that it interprets the start date to be the date that the full amount of an EB-5 investor’s capital is made to the new commercial enterprise and placed at risk under applicable requirements, including being made available to the job creating entity. Thus, USCIS has taken the position that post-RIA EB-5 investors no longer need to sustain their capital investment throughout their period of conditional permanent residence.
It is important to note that USCIS’s guidance on the sustainment period is currently the subject of a legal challenge, and therefore, the agency’s interpretation and implementation of the sustainment period may change. This ambiguity also means that post-RIA EB-5 investors must take a cautious and defensible approach.
CanAm’s Post-RIA Solution: Structuring to Minimize Risk
At CanAm, we have always taken a conservative and investor-first approach to project structuring. That mindset is especially critical post-RIA, where immigration timelines are accelerating but capital deployment often still unfolds over time.
Here’s how we address this head-on:
- We use a conservative sustainment start date.
We assume that the post-RIA 2-year sustainment period begins only once an EB-5 investor’s capital is fully deployed into the job-creating project.
- We build in more time than the minimum.
Current USCIS guidance provides that the RIA establishes only minimum required investment timeframes and does not place any upward limit on how long an EB-5 investor’s capital may be retained before being returned. This means that regional centers or their associated new commercial enterprises are able to negotiate longer periods of investment directly with their investors independently of EB-5 eligibility requirements. Therefore, it is important for EB-5 investors to be aware of and understand the terms of the EB-5 capital deployment into the EB5 project (i.e., the maturity date, any extension options, prepayment conditions, etc.), which will ultimately determine the length of time that the EB-5 investor’s capital remains outstanding and sustained at-risk.
CanAm typically structures its post-RIA EB-5 loans with a minimum 3.5-year term, providing:
- 12 to 18 months for capital deployment, and
- A full 2-year sustainment period afterward.
This approach ensures funds are not returned to the new commercial enterprise before the respective 2-year sustainment periods of all EB-5 investors are met—even if USCIS processing moves quickly.
- We protect all investors, including the last one in.
While we believe that each post-RIA EB-5 investor’s 2-year sustainment period begins to accrue when their EB-5 capital amount is deployed into a job-creating project, CanAm is careful to structure its EB-5 loans to mature at least 2 years following the date on which the last EB-5 investor’s capital is expected to be deployed into the job-creating project, thus ensuring that every EB-5 investor preceding the last one is also able to meet their respective sustainment requirements.
As we explained in our blog, Navigating EB-5 Sustainment Uncertainty:
“CanAm determined that the most conservative interpretation of the USCIS language required all EB-5 capital to be fully deployed into the job-creating entity and actively at risk before the sustainment clock could start.”
Project structure is not just a financial consideration—it’s a compliance safeguard.
As CanAm COO Christine Chen put it:
“We structure our projects with sufficient flexibility to ensure that the sustainment requirement is met under any interpretation. That means even if policies shift or processing times change, our investors are protected.”
Final Thought: Structure Now to Avoid Surprises Later
EB-5 investors do not need to wait until their 2-year sustainment period is complete to file their I-829 Petition. But EB-5 investors do need to make sure their capital is properly deployed, kept at risk, and aligned with EB-5 requirements by the time USCIS makes a decision.
At CanAm, we’ve anticipated this challenge. Our post-RIA structuring is designed to remove ambiguity, eliminate timing gaps, and help our investors move through the EB-5 process with confidence.
