[Code of Federal Regulations]

[Title 8, Volume 1]

[Revised as of January 1, 2006]

From the U.S. Government Printing Office via GPO Access

[CITE: 8CFR216.6]



[Page 395-398]

 

                     TITLE 8--ALIENS AND NATIONALITY

 

               CHAPTER I--DEPARTMENT OF HOMELAND SECURITY

 

PART 216_CONDITIONAL BASIS OF LAWFUL PERMANENT RESIDENCE STATUS--Table 

of Contents

 

Sec. 216.6  Petition by entrepreneur to remove conditional basis of 

lawful permanent resident status.



    (a) Filing the petition--(1) General procedures. A petition to 

remove the conditional basis of the permanent resident status of an 

alien accorded conditional permanent residence pursuant to section 

203(b)(5) of the Act must be filed by the alien entrepreneur on Form I-

829, Petition by Entrepreneur to Remove Conditions. The alien 

entrepreneur must file Form I-829 within the 90-day period preceding the 

second anniversary of his or her admission to the United States as a 

conditional permanent resident. Before Form I-829 may be considered as 

properly filed, it must be accompanied by the fee required under Sec. 

103.7(b)(1) of this chapter, and by documentation as described in 

paragraph (a)(4) of this section, and it must be properly signed by the 

alien. Upon receipt of a properly filed Form I-829, the alien's 

conditional permanent resident status shall be extended automatically, 

if necessary, until such time as the director has adjudicated the 

petition. The entrepreneur's spouse and children should be included in 

the petition to remove conditions. Children who have reached the age of 

twenty-one or who have married during the period of conditional 

permanent residence and the former spouse of an entrepreneur, who was 

divorced from the



[[Page 396]]



entrepreneur during the period of conditional permanent residence, may 

be included in the alien entrepreneur's petition or may file a separate 

petition.

    (2) Jurisdiction. Form I-829 must be filed with the regional service 

center having jurisdiction over the location of the alien entrepreneur's 

commercial enterprise in the United States.

    (3) Physical presence at time of filing. A petition may be filed 

regardless of whether the alien is physically present in the United 

States. However, if the alien is outside the United States at the time 

of filing, he or she must return to the United States, with his or her 

spouse and children, if necessary, to comply with the interview 

requirements contained in the Act. Once the petition has been properly 

filed, the alien may travel outside the United States and return if in 

possession of documentation as set forth in Sec. 211.1(b)(1) of this 

chapter, provided the alien complies with the interview requirements 

described in paragraph (b) of this section. An alien who is not 

physically present in the United States during the filing period but 

subsequently applies for admission to the United States shall be 

processed in accordance with Sec. 235.11 of this chapter.

    (4) Documentation. The petition for removal of conditions must be 

accompanied by the following evidence:

    (i) Evidence that a commercial enterprise was established by the 

alien. Such evidence may include, but is not limited to, Federal income 

tax returns;

    (ii) Evidence that the alien invested or was actively in the process 

of investing the requisite capital. Such evidence may include, but is 

not limited to, an audited financial statement or other probative 

evidence; and

    (iii) Evidence that the alien sustained the actions described in 

paragraph (a)(4)(i) and (a)(4)(ii) of this section throughout the period 

of the alien's residence in the United States. The alien will be 

considered to have sustained the actions required for removal of 

conditions if he or she has, in good faith, substantially met the 

capital investment requirement of the statute and continuously 

maintained his or her capital investment over the two years of 

conditional residence. Such evidence may include, but is not limited to, 

bank statements, invoices, receipts, contracts, business licenses, 

Federal or State income tax returns, and Federal or State quarterly tax 

statements.

    (iv) Evidence that the alien created or can be expected to create 

within a reasonable time ten full-time jobs for qualifying employees. In 

the case of a ``troubled business'' as defined in 8 CFR 204.6(j)(4)(ii), 

the alien entrepreneur must submit evidence that the commercial 

enterprise maintained the number of existing employees at no less than 

the pre-investment level for the period following his or her admission 

as a conditional permanent resident. Such evidence may include payroll 

records, relevant tax documents, and Forms I-9.

    (5) Termination of status for failure to file petition. Failure to 

properly file Form I-829 within the 90-day period immediately preceding 

the second anniversary of the date on which the alien obtained lawful 

permanent residence on a conditional basis shall result in the automatic 

termination of the alien's permanent resident status and the initiation 

of deportation proceedings. The director shall send a written notice of 

termination and an order to show cause to an alien entrepreneur who 

fails to timely file a petition for removal of conditions. No appeal 

shall lie from this decision; however, the alien may request a review of 

the determination during deportation proceedings. In deportation 

proceedings, the burden of proof shall rest with the alien to show by a 

preponderance of the evidence that he or she complied with the 

requirement to file the petition within the designated period. The 

director may deem the petition to have been filed prior to the second 

anniversary of the alien's obtaining conditional permanent resident 

status and accept and consider a late petition if the alien demonstrates 

to the director's satisfaction that failure to file a timely petition 

was for good cause and due to extenuating circumstances. If the late 

petition is filed prior to jurisdiction vesting with the immigration 

judge in deportation proceedings and the director excuses the late 

filing and approves the petition, he



[[Page 397]]



or she shall restore the alien's permanent resident status, remove the 

conditional basis of such status, and cancel any outstanding order to 

show cause in accordance with Sec. 242.7 of this chapter. If the 

petition is not filed until after jurisdiction vests with the 

immigration judge, the immigration judge may terminate the matter upon 

joint motion by the alien and the Service.

    (6) Death of entrepreneur and effect on spouse and children. If an 

entrepreneur dies during the prescribed two-year period of conditional 

permanent residence, the spouse and children of the entrepreneur will be 

eligible for removal of conditions if it can be demonstrated that the 

conditions set forth in paragraph (a)(4) of this section have been met.

    (b) Petition review--(1) Authority to waive interview. The director 

of the service center shall review the Form I-829 and the supporting 

documents to determine whether to waive the interview required by the 

Act. If satisfied that the requirements set forth in paragraph (c)(1) of 

this section have been met, the service center director may waive the 

interview and approve the petition. If not so satisfied, then the 

service center director shall forward the petition to the district 

director having jurisdiction over the location of the alien 

entrepreneur's commercial enterprise in the United States so that an 

interview of the alien entrepreneur may be conducted. The director must 

either waive the requirement for an interview and adjudicate the 

petition or arrange for an interview within 90 days of the date on which 

the petition was properly filed.

    (2) Location of interview. Unless waived, an interview relating to 

the Form I-829 shall be conducted by an immigration examiner or other 

officer so designated by the district director at the district office 

that has jurisdiction over the location of the alien entrepreneur's 

commercial enterprise in the United States.

    (3) Termination of status for failure to appear for interview. If 

the alien fails to appear for an interview in connection with the 

petition when requested by the Service, the alien's permanent resident 

status will be automatically terminated as of the second anniversary of 

the date on which the alien obtained permanent residence. The alien will 

be provided with written notification of the termination and the reasons 

therefore, and an order to show cause shall be issued placing the alien 

under deportation proceedings. The alien may seek review of the decision 

to terminate his or her status in such proceedings, but the burden shall 

be on the alien to establish by a preponderance of the evidence that he 

or she complied with the interview requirements. If the alien has failed 

to appear for a scheduled interview, he or she may submit a written 

request to the district director asking that the interview be 

rescheduled or that the interview be waived. That request should explain 

his or her failure to appear for the scheduled interview, and if a 

request for waiver of the interview, the reasons such waiver should be 

granted. If the district director determines that there is good cause 

for granting the request, the interview may be rescheduled or waived, as 

appropriate. If the district director waives the interview, he or she 

shall restore the alien's conditional permanent resident status, cancel 

any outstanding order to show cause in accordance with Sec. 242.7 of 

this chapter, and proceed to adjudicate the alien's petition. If the 

district director reschedules that alien's interview, he or she shall 

restore the alien's conditional permanent resident status, and cancel 

any outstanding order to show cause in accordance with Sec. 242.7 of 

this chapter. If the interview is rescheduled at the request of the 

alien, the Service shall not be required to conduct the interview within 

the 90-day period following the filing of the petition.

    (c) Adjudication of petition. (1) The decision on the petition shall 

be made within 90 days of the date of filing or within 90 days of the 

interview, whichever is later. In adjudicating the petition, the 

director shall determine whether:

    (i) A commercial enterprise was established by the alien;

    (ii) The alien invested or was actively in the process of investing 

the requisite capital; and

    (iii) The alien sustained the actions described in paragraphs 

(c)(1)(i) and (c)(1)(ii) of this section throughout the



[[Page 398]]



period of the alien's residence in the United States. The alien will be 

considered to have sustained the actions required for removal of 

conditions if he or she has, in good faith, substantially met the 

capital investment requirement of the statute and continuously 

maintained his or her capital investment over the two years of 

conditional residence.

    (iv) The alien created or can be expected to create within a 

reasonable period of time ten full-time jobs to qualifying employees. In 

the case of a ``troubled business'' as defined in 8 CFR 204.6(j)(4)(ii), 

the alien maintained the number of existing employees at no less than 

the pre-investment level for the previous two years.

    (2) If derogatory information is determined regarding any of these 

issues or it becomes known to the government that the entrepreneur 

obtained his or her investment funds through other than legal means 

(such as through the sale of illegal drugs), the director shall offer 

the alien entrepreneur the opportunity to rebut such information. If the 

alien entrepreneur fails to overcome such derogatory information or 

evidence the investment funds were obtained through other than legal 

means, the director may deny the petition, terminate the alien's 

permanent resident status, and issue an order to show cause. If 

derogatory information not relating to any of these issues is determined 

during the course of the interview, such information shall be forwarded 

to the investigations unit for appropriate action. If no unresolved 

derogatory information is determined relating to these issues, the 

petition shall be approved and the conditional basis of the alien's 

permanent resident status removed, regardless of any action taken or 

contemplated regarding other possible grounds for deportation.

    (d) Decision--(1) Approval. If, after initial review or after the 

interview, the director approves the petition, he or she will remove the 

conditional basis of the alien's permanent resident status as of the 

second anniversary of the alien's entry as a conditional permanent 

resident. He or she shall provide written notice of the decision to the 

alien and shall require the alien to report to the appropriate district 

office for processing for a new Permanent Resident Card, Form I-551, at 

which time the alien shall surrender any Permanent Resident Card 

previously issued.

    (2) Denial. If, after initial review or after the interview, the 

director denies the petition, he or she shall provide written notice to 

the alien of the decision and the reason(s) therefor, and shall issue an 

order to show cause why the alien should not be deported from the United 

States. The alien's lawful permanent resident status and that of his or 

her spouse and any children shall be terminated as of the date of the 

director's written decision. The alien shall also be instructed to 

surrender any Permanent Resident Card previously issued by the Service. 

No appeal shall lie from this decision; however, the alien may seek 

review of the decision in deportation proceedings. In deportation 

proceedings, the burden shall rest with the Service to establish by a 

preponderance of the evidence that the facts and information in the 

alien's petition for removal of conditions are not true and that the 

petition was properly denied.



[59 FR 26591, May 23, 1994, as amended at 63 FR 70315, Dec. 21, 1998]