The EB-5 green card comes in two steps: a two-year conditional permanent resident status, followed by Form I-829 to remove the conditions and receive an unconditional green card. The I-829 is the final gate in the EB-5 process, and the focus shifts from whether the investor qualifies to whether the investment was carried through. This article walks through the filing window, evidence, adjudication, derivatives, and risk management.
The filing window: 90 days before the second anniversary
Conditional permanent residence is valid for two years, counted from the date it was granted (the I-485 approval date, or the date of entry on an immigrant visa). The I-829 must be filed within the 90 days before that two-year period ends.
| Timing | Consequence |
|---|---|
| Filed before the 90-day window opens | USCIS rejects the filing; re-file within the window |
| Filed within the 90-day window | Accepted and processed normally |
| Filed after expiration | Conditional status terminates automatically unless good cause for the late filing is shown; removal proceedings may follow |
The filing fee is $3,750 under the fee schedule reinstated by court order in November 2025, rising to $5,000 for filings on or after November 30, 2026; confirm the current schedule. In practice, filing early in the window leaves room to supplement evidence.
Core evidence 1: investment made and sustained
The I-829 must show that the investor placed the full required capital in the New Commercial Enterprise (NCE) and that the capital remained at risk for the required period.
- Investment made: wire records, the NCE’s subscription confirmation, and records of funds moving from escrow to the NCE and on to the Job Creating Entity (JCE).
- Investment sustained: under the USCIS policy of October 11, 2023, post-RIA investors must keep their capital at risk for at least two years from the date it is invested in the NCE; pre-RIA investors must sustain it through the end of the two-year conditional period. Evidence typically includes NCE financial statements, bank statements, partner capital account records, and fund administrator reports.
- Redeployment: if the JCE repaid the NCE and the NCE redeployed the capital, the filing should explain where, when, and how the funds remain at risk. See Redeployment of EB-5 Capital Explained.
A common problem: the investor received a partial return of principal during the two-year period, or the NCE’s arrangements amount to a guarantee. Either can defeat the at-risk requirement and should be reviewed with counsel and the regional center in advance.
Core evidence 2: job creation
Each investor must show that 10 full-time jobs have been created (or will be created within a reasonable time). Regional center projects may count direct, indirect, and induced jobs, subject to the RIA limits:
- Indirect jobs may account for no more than 90% of the required jobs.
- Jobs from construction activity lasting less than two years may account for no more than 75% of the required jobs.
The regional center usually assembles this evidence, including:
- An updated economic impact report that recalculates job counts from actual expenditures or actual revenues.
- Proof of actual project spending: contractor invoices, payment records, completion certificates, audit reports.
- For direct hires, Forms I-9, payroll records, and quarterly tax filings.
- A job allocation schedule showing how jobs are distributed among investors and how many are allocated to this investor.
USCIS pays close attention to differences between the job creation evidence and the business plan filed with the I-526E. Differences are not necessarily fatal; what matters is whether they can be explained and the job requirement still shown to be met.
The automatic 48-month extension
Once the I-829 is filed, the USCIS receipt notice (Form I-797C) automatically extends conditional permanent residence for 48 months. During this period:
- The expired green card together with the receipt notice serves as evidence of lawful permanent resident status, work authorization, and the right to travel.
- Carry the passport, the original expired green card, and the original receipt notice when traveling.
- If the I-829 remains pending beyond 48 months, the investor may request an I-551 stamp from USCIS as further proof of status.
Practical note: some employers and institutions are unfamiliar with this extension mechanism. Keep a copy of the relevant USCIS announcement on hand.
Interview
USCIS may schedule an I-829 interview or waive it. Interviews typically cover:
- Confirmation of the investor’s identity and family relationships.
- Consistency of the source and path of funds with the I-526E.
- The investor’s understanding of the project’s progress.
- Whether the investment was sustained throughout the period and whether any principal was returned.
Investors need not be project experts, but they should understand their own investment documents, the flow of funds, and the basic facts of the project. An attorney may attend.
Derivatives
A spouse and children are normally included on the principal investor’s I-829 and do not file separately. Separate filings are required when:
- The principal investor has died.
- The principal and spouse have divorced (the spouse may file independently based on a good-faith marriage).
- A child cannot be included in the principal’s filing for another reason.
Children are not subject to the under-21 limit at the I-829 stage: a child who qualified when conditional status was granted may be included even if now over 21.
What if the project under-performs
This is the question investors ask most, and it calls for a calm assessment.
| Situation | Effect | Direction |
|---|---|---|
| Job count slightly below target | Possible RFE | Update the economic report, provide actual expenditure evidence, argue jobs will be created within a reasonable time |
| Project delayed but still under construction | Jobs not yet fully realized | Provide progress evidence and a revised schedule; support the reasonable-time argument |
| JCE repaid and capital redeployed | Redeployment must be shown to comply | Provide redeployment documents and an at-risk explanation |
| Project failed, capital partly lost | Both sustainment and job creation affected | Counsel evaluates jobs already created and the period during which funds were at risk; case-by-case |
| Regional center terminated | Project eligibility affected | The RIA includes good-faith investor protections; follow USCIS notices |
USCIS does not require the investor to earn a profit or the project to finish as originally planned. The law requires that the capital be at risk and the jobs be created. A project that lost money can still support approval if the jobs exist and no principal was returned under a guarantee. Conversely, a profitable project with insufficient jobs can be denied.
If an I-829 is denied, the investor may seek review in immigration court proceedings, but that stage is costly. The better investment is in thorough evidence before filing.
Key takeaways
- File the I-829 within the 90 days before the conditional green card’s second anniversary; late filings require good cause.
- Two core showings: full capital invested and kept at risk, and 10 full-time jobs created or to be created within a reasonable time.
- Post-RIA investors must sustain the investment for at least two years from the date it enters the NCE (USCIS policy of October 11, 2023).
- The receipt notice automatically extends conditional status for 48 months; carry original documents when traveling.
- Derivatives are usually included on the principal’s filing; divorce or the principal’s death requires separate filings.
- Under-performance is not automatic denial; the question is whether jobs and at-risk status can be proven. Fees follow the current USCIS schedule.
This article is general information, not legal advice. Prepare I-829 evidence together with your attorney and regional center.