On Mar 11 2014 by Klasko Immigration

The problem with increasing processing times for I-829 adjudication: It’s illegal.

On February 26, 2014, USCIS held its first Stakeholder Engagement since the publishing of its comprehensive EB-5 adjudications memorandum last year (the “May 30 Memo,” which we discussed at length shortly after it was issued).  During this conference call, the Service took the opportunity to introduce the new head of USCIS’ Immigrant Investor Division, Nicholas Colucci. USCIS also provided updates as to its geographic transition of EB-5 adjudications from the California Service Center to a dedicated, centralized office in Washington, D.C.

Although the call provided much needed insight on a variety of topics for stakeholders, there was one key message that may have stung the community: processing times for all EB-5 Forms (I-924, I-526, and I-829) will be increasing as USCIS transitions to its new office. One can be sympathetic with the Service in this regard – it has hired a multitude of new staff members and the challenges of opening a new office on the other side of the country must be quite daunting.

However, this increase in processing times presents a problem for USCIS which already exists – the Service is violating the Congressional statute mandating that Form I-829 be adjudicated within 90 days of filing.

By way of background, removal of conditions for an immigrant investor is governed by INA § 216A(c), introduced into the Act following the Immigration Act of 1990. Under those statutory provisions, the government is required to conduct a personal interview with investors within 90 days of filing the I-829. The statute provides the government an option of waiving the interview “in such cases as may be appropriate.” Under the provisions of INA § 216A(c)(3)(A)(ii), Congress mandated Legacy INS to make a decision on the I-829 within 90 days of the filing or of the interview, whichever is later. Given the unambiguous statutory language, the Service would need to issue an interview notice within 90 days or decide the I-829 at that time. As USCIS pattern and practice shows, interviews are quite rare absent indications of fraud or a petitioner’s inadmissibility/removability.

In 1994, while the EB-5 program was still in its infancy, Legacy INS first published the regulations governing removal of conditions for investors, found at 8 C.F.R. § 216.6. When the regulations were promulgated by notice and comment rulemaking, two commenters criticized the proposed regulation for lacking any time limits for the Service to adjudicate the I-829.

In response to these concerns, legacy INS explained:

Section 216A(c)(3) of the Act provides that the Attorney General make a determination on a petition to remove conditions within 90 days of the date the petition is filed or within 90 days of the interview, whichever is later. Accordingly, 8 CFR 216.6(b)(1) of the proposed regulation states that the Service Center director must either waive the interview requirement and adjudicate the petition or arrange for an interview within 90 days of the date the alien entrepreneur filed the petition. This regulation is, of course, subject to the provisions of 8 CFR 103.2(b)(10)(i) [relating to suspension of timing of adjudication due to missing evidence or biometric data]. 8 CFR 216.6(c)(1) provides that a decision on a petition shall be made within 90 days of the date of filing or within 90 days of the date of interview, whichever is later. The above provisions in the proposed regulation adequately address the commenters’ concerns as well as meet the adjudication time line set forth in section 216A(c)(3) of the Act.

Accordingly, the relevant regulatory text found at 8 C.F.R. § 216.6(b)(1)  provides in pertinent part:

The director must either waive the requirement for an interview and adjudicate the petition or arrange for an interview within 90 days of the date on which the petition was properly filed.

Notwithstanding this regulation, USCIS is not meeting the temporal requirement that Congress and its own rulemaking process imposed upon it.  As of December 31, 2013, the California Service Center reported that it was deciding I-829s filed by investors as of May 16, 2012, a period of 594 days, or approximately 1 year, 7.5 months. While our own experience has elucidated that certain petitions may move faster than others (calling into question whether the process truly is first-in, first-out), even if these processing times are average they clearly are in violation of the INA and the regulatory temporal mandate.

Some may argue, “Why is this a problem?” After all, the regulations do provide that an investor’s conditional lawful permanent resident status is “extended automatically, if necessary, until such time as the director has adjudicated the petition” upon proper filing and acceptance of the I-829. This view, however, fails to consider the undue burden placed on immigrant investors and their families.

First, consider the logistics. An I-829 must be filed within 90 days of the expiry of the investor’s conditional Green Card. After filing, the investor receives a notice that evidences that his/her status is extended for one year, but as explained above, the extension is indefinite. The notice allows the investor to prove lawful status for the purposes of readmission to the U.S. after international travel, employment authorization, and non-federal benefits such as renewal of a driver’s license. If the receipt notice expires (i.e. the case is still pending a year after filing), the investor must make repeated trips to a Field Office through InfoPass to obtain temporary stamps further evidencing that status.  It is unfair to subject investors – who have supplied at least $500,000 in capital in an effort to spur U.S. job creation – to the burden of dealing with bureaucratic headaches to prove their ongoing status simply because USCIS cannot meet its mandated timeframes.

Second, and even more importantly, the regulations provide that an investor must have sustained his/her commercial enterprise, investment, and job creation at the time of I-829 adjudication (whenever that may be). The EB-5 program has never required one’s investment to be permanent or indefinite – on the contrary, any reasonable reading of the regulations cited above provide that the entire process should be completed within 27 months following admission as a conditional resident. By dragging out the adjudication process to almost two years after the filing of an I-829, investors cannot redeem their capital contributions and move on to other endeavors that may be worth their time and attention.

As restructuring continues, USCIS should recognize that its lengthy I-829 processing times are in violation of the INA, the applicable regulations, and of investors’ reasonable expectations for the program and act accordingly.