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.

 

Copyright © 2003 - 2005 Alan Lee, Esq.
The information provided here is of a general nature and may not apply to any particular set of facts or circumstances. It should not be construed as legal advice and does not constitute an engagement of the Law Office of Alan Lee or establish an attorney-client relationship.