On May 2, 2018, the United States Citizenship and Immigration Services (USCIS) issued a Policy Alert regarding an update made to the USCIS Policy Manual related to the documentation for conditional permanent resident (CPR) status provided by USCIS to immigrant investors with pending I-829 petitions.  Every EB-5 investor with CPR status must file an I-829 petition to remove conditions by filing a Form I-829 petition within 90 days of the expiration of the two-year CPR status. USCIS then issues receipt notices to each EB-5 investor and dependent family member upon receiving the properly filed I-829 petition. The I-829 receipt notices evidence continuing CPR status (including travel and employment authorization) for an additional year after the expiration of the CPR card until the I-829 petition is adjudication or an order or removal becomes final. The Policy Alert explains that the original guidance which was previously found in Chapter 25.2 of the Adjudicator’s Field Manual (AFM) and not yet published in the USCIS Policy Manual, is now reaffirmed in Volume 6, Part G of the Policy Manual.

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Once an EB-5 investor receives permanent residency (whether conditional or unconditional), they must follow certain rules and regulations to ensure they do not lose their permanent residency, including physical presence requirements. Additionally, if an EB-5 investor desires to obtain U.S. citizenship, he or she must meet certain residence and physical present requirements.

In order to maintain permanent residency, an EB-5 investor should not remain physically outside of the United States for more than one year without obtaining a reentry permit or returning resident visa. However, in determining whether an EB-5 investor has abandoned his or her status, USCIS may consider any length of absence from the United States, even if less than one year. If an EB-5 investor secures a reentry permit, he or she should not remain physically outside of the United States for more than two years after issuance of a reentry permit without obtaining a returning resident visa. EB-5 investors also should file their income tax returns in a timely fashion and make sure not to declare themselves a “non-immigrant” on such income tax returns. Lastly, USCIS will attempt to ascertain the intent of an EB-5 investor if it is inquiring about whether or not the EB-5 investor has abandoned his or her permanent residency. An EB-5 investor can take certain steps, including, without limitation, holding property within the United States; establishing personal connections with family, friends and other members of the community in which the EB-5 investor resides; ensuring employment can be completed remotely from the United States or does not require significant time spent abroad; and always declaring themselves to be a permanent resident of the United States and listing his or her permanent address as the United States on any government form, whether for the United States or another country, to demonstrate to USCIS the requisite intent to remain a permanent resident.


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