Q & A August 28, 2005
Q & A 1. 2.
3.
Q&A 1.
Immigrant Investors Attempting to Remove Conditional Basis of
Green Card – Why There Is Little News
Fang Reader asks:
My family (3 unmarried children under 21 and I) applied for immigration
based on investment in 1998. In 2/99, we obtained temporary green
cards and entered into the United States. In 2/01, we submitted
form I-829 to remove conditions for a conditional resident accorded
status through investment. As of now, 4 years later, we have not
received anything from USCIS. When I checked my receipt number online,
the response was:
Status for this receipt number cannot be found at this time in
this automated system. Please check your case receipt number to
see if it is correct.
The law firm I hired had telephoned and sent out several letters
to USCIS in no vain. Is my case normal? How soon can the investment
base immigrants receive permanent green cards after filing I-829?
Mr. Lee Answers:
It is not surprising that you cannot find the I-829 receipt number
in the automated system as it is not in the regular on-line status
system, which is accessible by the public.
Unfortunately the investment immigration program in the U.S. has
turned out to be a mess because it is in the main unattractive due
to the risk that the money required for immigration investment might
be lost, the large amount of monies and the number of individuals
required to be hired, the desire of aliens and their representatives
to "game" the system through various schemes to reduce
the monies at risk, and most of all the inability of legacy INS
to clarify the rules, and its reneging on pronounced policy and
memos that it gave to the public as to what would qualify as a proper
investment. On that score, the General Counsel of the agency wrote
a memorandum to the Acting Executive Associate Commissioner of legacy
INS's Office of Programs in December 1997 questioning the legality
of the various financial transactions that had been used in immigrant
investor cases, with the conclusion that many of the financial relationships
of investment did not involve funds "at risk", one of
the requirements of the investor immigration law . In 1998, the
agency wrote 3 administrative appellate decisions making it more
difficult for individuals to qualify for the investor program (Matter
of Soffici, Matter of Izumii, and Matter of Hsiung), but legacy
INS received a serious setback in its interpretation when the Ninth
Circuit Court of Appeals ruled against it in the 2003 case of Chang
v. U.S., the court concluding that the 1998 changes in the investment
program rules were impermissibly retroactive as applied to the evaluation
of petitions to remove the conditions on permanent residency through
the investment program. In the meantime, Congress heard enough complaints
and passed legislation on November 2, 2002, through the 21st Century
DOJ Appropriations Authorization Act to ameliorate this situation
by commanding removal of the conditional basis of an investor status
given from January 1, 1995 to August 30, 1998, as long as there
was no material misrepresentation, the enterprise created the correct
number of jobs; that the alien was in substantial compliance with
capital investment requirements on the date that the I-829 was filed,
six months after the filing date, and the date on which a decision
is made; and that the required numbers of new jobs existed on any
one of those 3 dates. However, regulations have never been written
and so cases in which the I-829 was approved between 1/1/95 and
8/31/98 are still being held at the California Service Center pending
promulgation of the regulations.
It is difficult to know how soon regulations will be passed although
U.S.C.I.S. is receiving much more pressure to finalize the regulations
due to the recommendation of the General Accountability Office (GAO)
in its April 2005 study on immigrant investors, the agency saying,
"Given the undetermined status and potential hardships imposed
upon hundreds of EB-5 applicants awaiting the promulgation of implementing
regulations and that two years have passed since Congress required
DHS to issue regulations for adjudicating the EB-5 applications,
and to better achieve the economic benefits of the EB-5 category,
we recommend that the Secretary of the Department of Homeland Security
finalize and issue these regulations. "
Q&A 2.
Effect of Adding New Name for Green Card Holder
Li Reader asks:
I want to change my name on my passport (The Republic of China),
so that my passport name will show my new name and my old name will
be indicated under “also known as“ field. If I change
my name on my passport, is it ok not to change my name on my green
card, re-entry permit, military record, social security record,
etc.? If I do not change my name on my green card, will I have problem
coming back to U.S.?
Mr. Lee Answers:
To change a name for immigration purposes, you would need to have
an official court order either through a regular state court process
or naturalization, or a marriage certificate showing the name of
a new husband. I do not believe that you would have to change your
name on any of your official documentation if your old name is still
indicated as an AKA. You may, however, have to explain the new name
to any agency with which you come into contact, including the immigration
inspector at the port of entry.
Q&A 3.
Another Option for Stuck I-130 Petition in Immediate Relative
Category
Lyn Reader asks:
My husband who is a US citizen applied I-130 for my son who was
13 years old in China on 8/1/2003. However, we have not heard anything
from immigration since the receipt.
We live in Los Angeles, CA. We checked many times with USCIS via
telephone and faxes, however, we were told either “your case
is under review” or “your case is far behind current
processing date.” The online processing date indicated that
it had already processed 2/8/05 cases for US citizen’s children
under 21.
Could you please give us suggestions on how to check and speed
up my son’s case as well as where and whom we should be contacting?
Mr. Lee Answers:
Sometimes it is better to find another route than to keep butting
heads on one that appears to be difficult. You can continue to check
on your I-130 petition, but your husband should also consider filing
another one. He may reach a faster result with the second petition
than waiting to hear back from the first. According to the latest
processing time chart of the California Service Center, I-130s for
immediate relative family members are being reached in 4 months
from the date of filing.
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