May 2 Policy Manual Update: One Small Step for I-829 Filers; Some Giant Leaps Left for USCIS to Take

05.03.18 | Archived

robertcdivineby Robert C. Divine, Shareholder, Baker Donelson

USCIS has announced that it has amended the Policy Manual to clarify that people awaiting adjudication of Form I-829, Petition by Entrepreneur to Remove Conditions on Permanent Resident Status, are entitled to evidence of their continuing permanent residence. That is one small step in the currently lousy process of getting such evidence routinely into the hands of faithful investors.

On May 2, 2018, USCIS announced the second round of changes to the USCIS Policy Manual that it had published in late 2016. The earlier announced changes of June 2014 had amended numerous sections to clarify the agency’s requirement that investors “sustain their investment,” which I explained in an article.

The May 2, 2018 change only adds section D to Chapter 5 of the Policy Manual, which confirms that USCIS will continue to issue evidence of permanent residence for as long as I-829 is pending and even after I-829 is denied until a final order of removal. This aligns the Policy Manual with instructions the former Adjudicators Field Manual had provided to USCIS officers, and it aligns with similar policy still in the Section 25.1 of the USCIS Adjudicators Field Manual, following INS General Counsel Opinion 96-12, as to immigrants who are the subject of an I-751 filing to remove conditions that come with a marriage-based green card. Evidence of immigration status is increasingly necessary in the U.S., whether for work, travel, driver license, apartment rental, etc. It is not acceptable for the Government not to provide this evidence at all times.

People in Proceedings. When USCIS published the Policy Manual section on Investors in late 2016, it invalidated the prior EB-5 section of the Adjudicators Field Manual, so there was no published policy about the requirement of USCIS officers to issue temporary green card evidence to an investor awaiting I-829 adjudication or awaiting completion of removal proceedings following an I-829 denial. When an I-829 petition is denied, the investor and family should be placed in removal proceedings where they can challenge the USCIS denial before an immigration judge, whose denial can be appealed to the Board of Immigration Appeals (followed by petition to a U.S. Court of Appeals). Some investors and family in such proceedings had experienced difficulty obtaining the interim documents and had no internal USCIS policy document to point officers to for their entitlement. IIUSA and AILA members on numerous occasions in writings and in USCIS stakeholder meetings had asked USCIS to re-issue such policy, and I must hail John Pratt with Kurzban, Kurzban, Weinger, Tetzeli & Pratt P.A. for his ceaseless advocacy on this point. USCIS representatives had stated that they would look into this, and this May 2, 2018 action shows USCIS following through on a reasonable commitment.

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