The EB-5 path from conditional to permanent green card: the 2-year wait and the evidence required

The EB-5 path from a conditional to a permanent green card is the most important stage in deciding whether the investor actually becomes a permanent resident of the United States. After the I-526E is approved and the Priority Date is current, the investor and family receive a conditional green card valid for 2 years. During this period, the investment capital must remain at risk and the project must finish creating the full 10 full-time jobs per investor.

At the end of the 2-year period, the investor must file Form I-829 to remove the conditions and move to a 10-year permanent green card. This is when U.S. Citizenship and Immigration Services (USCIS) assesses the actual results of the investment as a whole. This article analyses in detail each stage, the milestones, the evidence required and the potential risks on the EB-5 path from a conditional to a permanent green card.

What the EB-5 conditional green card is

A Conditional Green Card is a form of temporary permanent residence issued byU.S. Citizenship and Immigration Services (USCIS)to investors undervisa EB-5after the I-526E is approved and the Priority Date is current. The card is valid for exactly 2 years from the date the I-485 is approved or the date of entry into the United States on the EB-5 visa.

The conditional green card gives investors the full rights of permanent residents:

• Living and working freely in any US state
• Starting businesses, buying property and opening bank accounts
• Studying at public schools at resident tuition rates
• Access to public health insurance and social security
• Sponsoring relatives in the family-based categories
• Travelling internationally with the green card (subject to rules on time spent abroad)

The only difference from a permanent green card is the attached condition: when filing the I-829, the investor must prove they kept the investment at risk and that the project created the full 10 jobs.

The origin of the 2-year conditional period in EB-5

The 2-year conditional rule for EB-5 investors was established by Section 216A of the Immigration and Nationality Act (INA), added by the Immigration Act of 1990. The purpose of this period is to ensure investors genuinely deliver on their capital and job commitments before receiving a permanent green card.

According to USCIS, the 2-year period starts from one of two points: the I-485 approval date (for investors using adjustment of status in the United States) or the date of entry into the United States on the EB-5 visa (for investors using consular processing).

The EB-5 Reform and Integrity Act 2022 (RIA) clarified and amended several related rules. For I-526 or I-526E petitions filed from 15/03/2022 onwards (post-RIA), USCIS determines the start of the 2-year at-risk period based on the date the qualifying investment was transferred into the New Commercial Enterprise and placed at risk.

This is an important change from the old rules. Under the USCIS announcement of 11/10/2023, the 2-year at-risk period is counted from the date the investor completes the capital transfer and files the petition, rather than from the date the conditional green card is received. The change benefits investors by shortening the actual time the capital must be kept at risk.

The two core conditions for removing EB-5 green card conditions

To move from a conditional to a permanent green card, the investor must prove to USCIS through the I-829 petition that they meet two core conditions at the same time.

Condition 1: Keeping the investment at risk

The investor’s capital must be kept at risk (subject to real risk) throughout the 2-year period. “At risk” means the investment must face a genuine possibility of loss if the project fails — returns cannot be guaranteed, there can be no unconditional repayment commitment, and the capital may not be withdrawn before the EB-5 requirements are met.

According to the USCIS Policy Manual, Volume 6, Part G, the following factors cause the investment to lose its at-risk status:

• The investor withdraws capital before the full 2-year at-risk period
• The project is wound up and the capital returned to the investor before the I-829 is approved
• The New Commercial Enterprise is dissolved or liquidated
• The capital is moved to another project without USCIS approval

For investors investing through aRegional Center, at-risk status is usually maintained through a Limited Partnership agreement with clear terms on the minimum investment period and rules on profit distribution.

Condition 2: Creating the full 10 jobs

Each EB-5 investor must prove that the project has created (or in some cases will create within a reasonable time after the 2-year period) at least 10 full-time jobs for qualifying workers in the United States.

Qualifying workers, as defined by USCIS, are US citizens, lawful permanent residents or others lawfully authorised to work (excluding the investor and dependent family members). A full-time job is defined as a position requiring at least 35 working hours per week.

The job-counting method differs between the two EB-5 models:

• EB-5 Direct: only direct jobs count — employees directly hired by the New Commercial Enterprise
• EB-5 qua Regional Center: all 3 types count — direct, indirect (employees of suppliers/contractors) and induced (jobs generated by the spending of workers’ and businesses’ income)

Form I-829: the petition to remove EB-5 green card conditions

Form I-829 (Petition by Investor to Remove Conditions on Permanent Resident Status)is the official petition the investor files with USCIS to move from a conditional to a permanent green card. It is one of the most important filings in the entire EB-5 roadmap.

Under USCIS rules, the I-829 must be filed within the 90 days before the second anniversary of the conditional green card. Filing outside this window has serious consequences:

• Filing more than 90 days early: USCIS will reject the petition and require it to be refiled within the correct window
• Filing after the second anniversary: the conditional green card expires, the investor loses permanent resident status and may face removal proceedings

When the I-829 is filed on time, USCIS automatically extends the investor’s permanent resident status until the I-829 is approved. The USCIS Receipt Notice can be used together with the expired green card as proof of lawful residence when travelling internationally.

Evidence required when filing the I-829

The I-829 petition must include a comprehensive set of documents proving both core conditions are met. Document preparation should be supported by an immigration lawyer experienced in EB-5 cases, since mistakes can lead to an RFE, NOID or denial.

Evidence of keeping the investment at risk

Documents proving the investment was kept at risk throughout the 2-year period include:

• Bank statements of the New Commercial Enterprise or Regional Center
• Audited financial statements of the project
• The Limited Partnership agreement and its annexes
• Records of the capital transfer from the investor’s account to the project
• Periodic reports from the General Partner or project operator on the status of the capital

For investors through a Regional Center, periodic Form I-956G reports are also used as additional evidence.

Evidence of creating 10 jobs

The documents proving the full 10 jobs were created differ between Direct and Regional Center:

For EB-5 Direct:

• W-2 or 1099 payroll records for employees
• Quarterly employment tax returns (Form 941)
• I-9 records proving lawful work authorisation
• Timesheets and employment contracts
• State unemployment insurance reports

For EB-5 through a Regional Center:

• An Updated Economist Report using a methodology accepted by USCIS
• Invoices and acceptance records showing actual construction/operating costs
• Independent audit reports on the investment items and revenue
• A report comparing the original projections (in the I-526E) with actual results

I-829 processing time

Current I-829 processing times at USCIS vary quite widely, usually from 24 to 60 months depending on the service centre and the complexity of the petition. It is one of the EB-5 filings with the longest processing times.

While waiting for the I-829 to be approved, the investor keeps the full rights of a permanent resident through the I-797 Receipt Notice. The Receipt Notice automatically extends permanent resident status by 48 months beyond the expiry date on the conditional green card.

Once the I-829 is approved, USCIS sends the 10-year permanent green card by post within 2–4 weeks. The I-829 approval date is also the basis for calculating when the investor becomes eligible to apply for US naturalisation through the N-400 (after 5 years of continuous permanent residence, or 3 years if married to a US citizen).

The overall path from the I-526E to a permanent green card

The EB-5 path from a conditional to a permanent green card sits within a larger sequence from the initial filing to US citizenship. The table below summarises the main milestones.

Stage	Milestone	Expected time
1. File the I-526E	Establish the Priority Date	0 months
2. I-526E approved	Visa eligibility	5–48 months
3. File the I-485 or DS-260	Khi Priority Date current	after step 2
4. I-485/visa approved	Receive the 2-year conditional green card	6–24 months after step 3
5. Keep the investment at risk + create jobs	During the 2 conditional years	24 months
6. File the I-829	Within the 90 days before the second anniversary	months 21–24
7. I-829 approved	Receive the 10-year permanent green card	24–60 months after step 6
8. Eligible for the N-400	US naturalisation	5 years after step 4

The table above shows that the total time from filing the I-526E to receiving a permanent green card can range from 5 to 12 years depending on the type of project and the investor’s nationality.

Risks and prevention during the 2-year period

The 2-year conditional period carries many risks that can lead to an I-829 denial. Understanding these risks helps investors take preventive action.

The biggest risk is the project failing to create the full 10 jobs within the permitted time. Common causes include the project running behind schedule, changes in construction scale, or a market downturn affecting expected revenue. Investors should ask the project operator for regular reports and intervene early if there are signs of delay.

The second risk is withdrawing capital before the at-risk period ends. Some projects may propose early repayment once enough jobs have been created. However, if repayment happens before the full 2-year at-risk period under USCIS rules, the investor risks an I-829 denial.

The third risk relates to source of funds documentation. In some cases, USCIS may re-examine thesource of funds documentationat the I-829 stage if new information comes to light. Investors should keep all original SOF records throughout the process.

The fourth risk is a material change to the project structure. If the project changes significantly from what was described in the I-526E (for example, a change of use, a change in the job-counting method, or a merger with another project), the investor may have to refile the I-526E.

Conclusion

The EB-5 path from a conditional to a permanent green card is the stage that decides the success or failure of the whole investment. The two core conditions — keeping the investment at risk for 2 years and creating the full 10 jobs — require investors to choose the project wisely from the start and follow its implementation closely.

Filing the I-829 within the 90-day window before the second anniversary is a procedural requirement that must never be missed. At the same time, thorough document preparation from the early stages — including regular project reports, bank statements, employment records and updated economic reports — is the foundation for a successful I-829 petition. For investors who complete this stage successfully, the way to aUS permanent resident cardvalid for 10 years and the path to US citizenship will open wide.

Children included in the petition are assessed on their age at a specific point in time; details are in the articleEB-5 for children under 21 and the CSPA.