Ways to Delay the Beginning of Conditional Permanent Residence
Sometimes people want to delay the beginning of the period of conditional permanent residence in the U.S. People might want to delay for various reasons such as coordinating the ending of the children’s school year abroad and the beginning of a new school year in the U.S., timing the beginning of the person’s tax residence in the U.S., adjusting one’s business to continue functioning once the person moves to the U.S., giving notice in the person’s current employment, or, where the person has adopted a child, in order to complete the two-year period of custody that has to be completed before attending the immigrant visa interview at the consulate. Whatever a person’s rationale for delay might be, we will discuss now how that can be accomplished.
Once the I-526 petition is approved, the EB-5 investor and any family members must either apply for adjustment of status in the U.S. or consular processing of immigrant visas abroad. Holding off on filing the application for the next stage of the process is the primary method for delaying the start of the conditional permanent residence. In the case of adjustment of status in the U.S., the main time limitation is the amount of time the person has left in legal status on the person’s current visa status. In the case of applying for consular processing of an immigrant visa, the limitation is that the National Visa Center, which handles the initial processing of the immigrant visa, requires that the applicant initiate processing of the consular processing within one year of when NVC receives the person’s file from USCIS and notifies the person by sending out fee bills. If the person does not initiate the consular processing within that one-year period, then the NVC will return the file to USCIS for revocation of the I-526 petition approval. In case a person who plans to apply for adjustment of status indicated on the I-526 petition that he or she will seek consular processing, then the one-year limitation imposed by the NVC applies.
Another method for delay is available when one applies through consular processing. When the person attends the interview at the consulate and is approved, the consulate issues immigrant visas, which are usually valid for six months. The conditional permanent residence does not begin until the person enters the U.S. with the immigrant visa. Therefore, the person can hold off on entering the U.S. until just before the expiration of the immigrant visa.
After a person begins the conditional permanent residence, during the initial 6 months, the U.S. Customs and Border Protection officers show some understanding for the complications and delays that can occur while moving to the U.S., and so some clients have seen that CBP officers have shown some flexibility at that stage; however, the CBP officers’ flexibility will not continue indefinitely. For information on what the requirements are with regard to how long a person must spend in the U.S. and how a person can position himself to address a CBP officer’s scrutiny during a prolonged period of transferring one’s residence to the U.S., please click here.
One final consideration is that the EB-5 investor, when delaying the start of the conditional permanent residence, must bear in mind some possible benefits and risks that accompany the delay. The main benefit or risk centers on the claiming of jobs created in the EB-5 project. On the one hand, if the project is delayed, then it is better that the EB-5 investor has delayed the beginning of the conditional permanent residence, and, as a result, has delayed the time frame when he must apply for removal of conditions. On the other hand, if the creation of the jobs is on time, but there are not enough jobs to cover all EB-5 investors, then it will turn out that it was better to begin the conditional permanent residence sooner and, as a result, to apply sooner for the removal of conditions, since the earliest investors to apply for removal of conditions are the ones who will claim the jobs earliest, and if there are not enough jobs to cover all investors, then the latecomers would then not have enough jobs to claim.