U.S. Citizenship & Immigration Services (“USCIS”) recently announced that it would begin requiring in-person interviews for employment-based immigrant visa applications (i.e., “green card” applicants) filed after March 6, 2017. This new policy does not change the process for visa applicants residing outside the U.S. It does, however, create novel procedures for green card applicants living in the U.S. on lawful visa status. In this Update, we describe the impact of the new USCIS policy of in-person interviews on immigrant investors completing the EB-5 visa process.

USCIS Interview Policy Before October 1, 2017

At present, all applicants for temporary visas and green card applicants who reside outside of the U.S. are required to pass an in-person interview at a U.S. Consulate abroad as part of their visa process. By comparison, at present, applicants for temporary visas who are lawfully in the U.S. can apply to USCIS for change of status or extension of status without being interviewed by USCIS. And, until October 1, 2017, most green card applicants completing a work-based green card process before USCIS (because they reside lawfully in the U.S.) were generally were not interviewed in-person because USCIS exercised its right to waive the interview requirement.

New Policy Starting October 1, 2017

Starting October 1, 2017, the new USCIS policy dramatically changed procedures for persons completing work-based green card processes in the U.S. USCIS announced it will begin requiring in-person interviews for employment-based immigrant visa applications filed after March 6, 2017. Under this new policy, USCIS has ceased waivers of the interview requirement for employment-based immigrant visa applicants residing in the U.S. and now require all employment-based immigrant visa applicants to attend an interview as part of the process of obtaining their green cards.

Impact on EB-5 Investors

Since the EB-5 visa process for immigrant investors is a work-based green card process, the new policy extends to EB-5 investors. Thus, EB-5 investors residing in the U.S. who are seeking Adjustment of Status in the U.S. should prepare for an interview with USCIS agents as part of their green card process. Additionally, EB-5 investors should also be aware that the new USCIS will require a second in-person interview at the time that the investor and his or her family file Form I-829 to remove the conditional basis of their green card status.

Procedurally, EB-5 investors seeking to obtain their green card before USCIS in the U.S. must file, in sequence, first a Form I-526 petition to obtain the right to an EB-5 green card; second, a Form I-485 application to complete Adjustment of Status, and, third, a Form I-829 petition to obtain removal of the conditional basis of their green card. The visa interviews to be held before USCIS will occur on to occasions: first, before the approval of the Form I-485 application, and, second, before the approval of the Form I-829 petition. In relation to the I-829 interview, we note that USCIS announced in February 2016 its intention to implement I-829 in-person interviews – and appears to have followed through with its past statements.

In terms of the substance of visa interviews, USCIS has stressed that the purpose of the interviews is to verify supporting documentation and information presented in the underlying petitions and make sure that the applicant is not subject to any grounds of inadmissibility. This means, in practice, that EB-5 investors residing in the U.S. should prepare for a visa interview in a manner quite similar to an EB-5 visa interview before a U.S. Consulate abroad.

For example, after submitting the appropriate visa applications to USCIS, the immigrant visa applicant, and dependent family members, will be notified of their scheduled immigrant visa interview dates and provided with a list of documentation to bring to the immigrant visa interview. Such documentation generally consists of copies of the relevant applications, birth certificates, passport-style photographs, valid passports, marriage or divorce certificates (if applicable), sealed medical exam results, and police certificates. The primary purpose of the immigrant visa interview is to make sure that the applicant is not subject to any grounds of inadmissibility. Applicants and dependent family members should be prepared to answer questions about their past, particularly in regards to their prior visits, student visas or work visas to the U.S. or in regards to any issues that may indicate inadmissibility.

For EB-5 immigrant visa interviews, the investor should also be prepared to answer questions about their I-526 petition, the identity of the new commercial enterprise that they invested in, the project that will create jobs, and the source of the funds used for their EB-5 investment. Additionally, EB-5 immigrant visa interviews usually require documentation at the Adjustment of Status interview confirming that the investor’s investment funds were released from escrow for use in the EB-5 project (if available).

As proper preparation is important in the success of an employment-based immigrant visa interview, applicants will therefore need to work closely with experienced immigration attorneys to obtain the information and documentation necessary for the interviews.