Removal of Conditions Petition on EB5 Green Card: Definition, Requirements, Application, and Process

The Removal of Conditions Petition on EB5 Green Card is the final stage of immigrating to the United States through investment. The Removal of Conditions Petition on EB5 Green Card is filed by immigrant investors and their dependents to become Lawful Permanent Residents (LPRs) for 10 years. EB5 investors are granted an initial 2-year Conditional Permanent Residency to prove that they are able to meet the requirements of the EB-5 Visa and qualify for Green Card Removal of Conditions.  

The EB 5 Removal of Conditions petition is applied through filing Form I-829 (Petition by Investor to Remove Conditions on Permanent Resident Status). The EB 5 Removal of Conditions form must be filed within 90 days before the immigrant investor’s Conditional Residency expires to maintain lawful status in the USA. The U.S. Citizenship and Immigration Services (USCIS) processes and adjudicates Removal of Conditions EB5 petitions based on the minimum capital investment that has been sustained and led to the creation of at least 10 full-time permanent positions.

What is the Removal of Conditions Petition on EB5 Green Card?

The Removal of Conditions Petition on EB5 Green Card is a request to grant Lawful Permanent Residence (LPR) to EB-5 Visa investors and their families from their previous status as Conditional Permanent Residents. The Removal of Conditions Petition on EB5 Green Card is the final stage of the immigration through investment pathway for foreign investors and their families. 

The EB-5 Immigrant Investor Visa Program allows for an initial 2-year Conditional Permanent Residence (Green Card) to foreign investors who are able to invest a minimum amount in an enterprise in the United States that yields at least 10 full-time jobs for U.S. workers. EB-5 investors who are able to meet these requirements within their Conditional Residency qualify for Lawful Permanent Residence (LPR) which is valid for 10 years and renewable unlimitedly. A USA Green Card allows foreign citizens to live, work, and study indefinitely in the United States. 

How Does the Removal of Conditions Petition on EB5 Green Card Work?

The Removal of Conditions on EB 5 Green Card is applied for using Form I-829 (Petition by Investor to Remove Conditions on Permanent Resident Status). The Removal of Conditions on EB 5 Green Card is adjudicated by the U.S. Citizenship and Immigration Services (USCIS) based on the job creation and minimum investment requirements of the EB5 Visa. Form I-829 must be filed within 90 days before the EB 5 Visa investor’s 2nd anniversary as a Conditional Green Card holder. 

What is Form I-829?

Form I829 is the document submitted to the U.S. Citizenship and Immigration Services (USCIS) to Remove the Conditions on EB-5 Permanent Residence. The I829 form has to demonstrate that the EB-5 immigrant investor has fulfilled the minimum investment and employment creation requirements of the EB5 Visa Program for at least 2 years. An approved I-829 Form enables EB5 foreign investors and their families to become Lawful Permanent Residents for 10 years. 

Who is Eligible for Removal of Conditions Petiiton on EB5 Green Card?

EB 5 Visa investors and their qualified dependents are eligible to apply for EB5 Removal of Conditions to become LPRs.

• Conditional resident foreign investors.
• Current or former conditional resident spouse.
• Unmarried children under 21 of the EB-5 investor.
• Surviving spouse and children of the principal EB 5 investor who has been deceased. 
• The conditional permanent resident child of an EB5 investor who turned 21 years old or has gotten married during the Conditional Permanent Residency. 

What are the Requirements for the Removal of Conditions Petition on EB5 Green Card?

The requirements for EB-5 Removal of Conditions are summarized below.

• Proof that the EB 5 investor invested or was actively in the process of investing the required minimum capital in a new commercial enterprise (NCE) and that the investment has been maintained throughout the investor’s Conditional Permanent Residence in the US.
• Proof that the immigrant investor’s capital resulted in the creation of at least 10 full-time jobs for qualifying employees. 
• Proof that the commercial enterprise sustained the number of existing employees at no less than the pre-investment level for the period following the foreign investor’s admission as a Conditional Green Card holder if investing in a troubled business. 

We further discuss the main Removal of Conditions requirements in the next sections.

Evidence of Capital Investment

The EB5 Removal of Conditions petition must be accompanied by evidence that the foreign investor invested or was actively in the process of investing the minimum EB 5 capital. Evidence of capital investment includes bank statements, invoices, contracts, business licenses, receipts, federal or state income tax returns (ITRs), or federal or state quarterly tax statements. 

The minimum capital requirement for immigrant investors in a Targeted Employment Area (TEA) is $800,000. A Targeted Employment Area (TEA) is either a rural area or a high-unemployment region. Non-TEA investments must be at least $1.05 million.

Evidence of Sustainment of EB5 Investment

There must be evidence that the EB-5 Visa investment has been sustained for the duration of the foreign investor’s Conditional Permanent Residence by presenting financial and tax documents. USCIS considers the immigrant investor to have sustained the steps necessary for the EB-5 Green Card Removal of Conditions if they have, in good faith, substantially met the capital investment criterion and continually maintained their capital investment over the sustainment term. An immigrant investor is not required to have invested the entire capital but must show that they have substantially met the capital requirement when submitting a petition for EB 5 Green Card Removal of Conditions. 

Evidence of Job Creation

One of the EB 5 Removal of Conditions requirements is the creation of at least 10 full-time positions for qualifying employees through the immigrant investor’s capital. Direct investments of non-regional center investors must produce jobs directly created by the NCE. Regional center investors, on the other hand, are able to count direct, indirect, and induced jobs towards the minimum employment creation requirement. Regional centers are approved economic units that pool capital from EB 5 foreign investors to fund commercial projects. Indirect and induced jobs do not directly result from the NCE but are produced due to the positive economic impact of the EB-5 Project.

Below are common evidence submitted as part of the Removal of Conditions EB5 requirement for job creation.

• Payroll records, tax documents, and Form I-9 (Employment Eligibility Verification) proving direct employment creation from the EB-5 NCE.
• Payroll records, tax documents, and Form I-9 proving employment at the time of EB 5 investment and at the time of filing the Green Card Removal of Conditions.
• Reasonable methodologies, such as multiplier tables, feasibility studies, analyses of the domestic and international markets for the goods or services to be exported, and other statistically or economically valid forecasting tools to prove indirect job creation from a Regional Center Project.

USCIS does not require that the jobs still exist at the time of the Removal of Conditions EB5 petition adjudication in order to be credited to the investor. Instead, the job creation criterion is satisfied if the investor is able to demonstrate that, as a result of their investment, the NCE created at least 10 full-time positions for qualified workers. The 10 full-time jobs must be regarded as permanent at the time of employment creation.

How to Apply for Removal of Conditions Petition on EB5 Green Card?

These are the 5 steps involved in applying for a Removal of Conditions on EB-5 Green Card.

1. Fill out EB5 Removal of Conditions Form I-829. The I 829 form is downloadable from the USCIS website and consists of 12 parts. You will need to write information about your EB5 investment, personal and biographic information from you and your dependents, and information about the NCE and JCE on which your petition is based.
2. Complete the required evidence for EB5 Green Card Removal of Conditions. Key evidence to include is proof of your sustained minimum capital investment and job creation such as bank statements, tax records, payroll, and Form I-9.
3. Submit the EB5 Removal of Conditions form and pay the I829 filing fee. Form I 829 is filed with USCIS through their Dallas Lockbox. The filing fee for EB 5 Removal of Conditions is $3,750. An additional biometrics fee of $85 is required from immigrant investors and each of their dependents. 
4. Attend the Removal of Conditions interview. You will be interviewed by a USCIS officer to evaluate your investment in an EB5 Project and your role in it. You will need to explain how your investment led to the required minimum 10 full-time positions.
5. Receive your Unconditional Green Card. The adjudication of the EB 5 Removal of Conditions takes years to process so you will initially be given a receipt notice that extends your Conditional Green Card for 2 years. Once you obtain approval for your Removal of Conditions petition, you and your dependents will be given an Unconditional Green Card valid for 10 years. 

When to File Removal of Conditions Petition EB5 Green Card?

The EB5 Removal of Conditions form must be filed within 90 days before your 2-year Conditional Permanent Residency ends. Your Conditional Green Card will be extended for another 2 years while your EB-5 Removal of Conditions petition is being adjudicated.

How Long Does it Take to Remove Conditions on EB5 Green Card?

Removal of conditions with I-829 takes between 24.5 months to 45 months. See the median USCIS processing time for Removal of Conditions from 2018 to 2023 below sourced from the U.S. Citizenship and Immigration Services website. 

• 2018- 21.8 months
• 2019- 25.9 months
• 2020- 24.8 months
• 2021- 34.5 months
• 2022- 34.5 months
• 2023- 45.5 months (data from October 1, 2022 to March 31, 2023)

How Does USCIS Adjudicate the Removal of Conditions Petition on EB5 Green Card?

USCIS adjudicates Removal of Conditions EB-5 petitions based on the minimum investment and employment creation criteria of the Immigrant Investor Program. 

Here are key guidelines for meeting the USCIS criteria for EB5 Removal of Conditions approval.

• The EB-5 investment was placed and maintained at risk during the immigrant investor’s Conditional Permanent Residence.
• The minimum EB 5 capital was made available to the business or businesses most closely responsible for job creation. The immigrant investor has to demonstrate that the expected number of jobs from the capital investment will be created within a reasonable timeframe.

The inability to meet the USCIS requirements for Removal of Conditions makes you ineligible for an Unconditional Green Card.

What Does Full-time Employment for EB5 Job Creation Mean?

EB5 Visa requirements for job creation are position-focused and not employee-focused. Full-time employment is a minimum of 35 working hours per week and must be regarded as permanent. A permanent full-time position should last for at least 2 years. A full-time position can be filled by multiple workers in a job-sharing arrangement as long as the minimum number of working hours per week is met. 

What is the Reasonable Period of Job Creation for EB5 Removal of Conditions?

As a rule, the business plan submitted with Form I-526 (Immigrant Petition by Standalone Investor) upon initiation of the EB5 Visa process must demonstrate the minimum required full-time positions will be created in 2 years. USCIS allows for a degree of flexibility for the job creation timeframe in consideration of the realities and unpredictability of setting up a business but this is by no means an unlimited allowance. Jobs predicted to be produced more than 3 years following the immigrant investor’s admission into, or adjustment to, Conditional Permanent Residence status are typically not considered to be established within a reasonable time unless under severe conditions. Should USCIS decide that a longer timetable is required for job creation, additional evidence must be provided regarding the conditions that necessitated a lengthier job creation period.

What is Considered Material Change in an EB5 Removal of Conditions Petition?

Material changes are events, occurrences, or changes in conditions or circumstances that are beyond the control of EB-5 Visa investors. USCIS recognizes the process of carrying out a business plan and creating jobs depends on a wide array of variables over which an investor will not have any control. USCIS allows an immigrant investor who has been admitted to the United States on a conditional basis to Remove Conditions on Permanent Residence if circumstances have changed due to the realities of the business environment. 

An immigrant investor is able to continue through with the petition to Remove Conditions if they are able to show verifiable proof that all necessary EB5 conditions have been met despite the business plan included in the I-526 immigrant petition. USCIS does not reject requests to Remove Conditions only because an applicant has not followed the business plan outlined in the Form I-526 petition. An immigrant investor is allowed to undertake alternative business ventures in a sector that has not yet been designated under the EB 5 Regional Center Program.

Is Capital Redeployment Allowed to Qualify for EB5 Removal of Conditions?

Yes, so long as the subsequent capital deployment satisfies the criteria to sustain the capital at risk, an investment can be further deployed during the EB 5 Conditional Residency period in a way not anticipated in the initial I-526 petition. The initial I-526 form must be filed in good faith with the purpose to abide by the instructions contained therein. USCIS can assume that the investment was made with the intention of circumventing immigration regulations if the EB-5 investor cannot show that the immigrant petition was submitted in good faith.

In addition, if an immigrant investor invests in a new business venture linked to a regional center that USCIS terminates, their Conditional Permanent Resident status is not immediately revoked as a result of the regional center’s termination. The investor who is a Conditional Permanent Resident will still have the chance to show compliance with the EB-5 Program’s standards, including through reliance on indirect employment creation. 

What Happens if I Fail to File the Removal of Conditions Petition on EB5 Green Card?

Your EB5 Conditional Permanent Resident status will be terminated if you fail to file your Removal of Conditions petition within 90 days before your 2nd anniversary as an EB 5 Green Card holder. You are then rendered removable from the United States unless your reason was for a good cause and owing to extenuating circumstances. You will be given the chance to file your EB 5 Removal of Conditions petition past the required filing period by submitting a written explanation to USCIS. 

What Happens if the EB5 Investor Dies During the Conditional Permanent Residency Period?

The dependent spouse and children of the primary EB5 Visa investor remain qualified for Green Card Removal of Conditions should the EB 5 investor die within the Conditional Residency period. The immigrant investor’s dependents will have to file Form I-829 and prove that the requirements of the EB 5 Visa have been met for at least 2 years.

What Happens if USCIS Denies My EB5 Removal of Conditions Application?

You are allowed to request a review of the USCIS denial of your I829 petition during the removal proceedings. USCIS will issue you a temporary Green Card until the removal process is administratively final. The order of removal is considered administratively final if the USCIS decision has not been appealed, or if appealed, is dismissed by the Board of Immigration Appeals. 

Do I Get the Money I Invested for an EB5 Visa After the Removal of Conditions Approval?

Yes, once you obtain your Unconditional Green Card with a Removal of Conditions approval you are free to seek a return of your EB5 investment. Documents such as the private placement memorandum (PPM) or limited partnership agreement state how your EB-5 money will be returned after Removal of Conditions approval. Each EB 5 Visa Project has its own exit strategy in place to return your monetary investment such as refinancing or project liquidation.

FAQs about Removal of Conditions on EB5 Green Card