By David Hirson, Esq. and Mona Shah, Esq.
More and more, U.S. Citizenship and Immigration Services (“USCIS”) resembles that neighbor during Halloween who annoyingly gives out carrots to trick-or-treaters instead of candy. But every once in a while, the agency distributes a bit of EB-5-flavored confectionery to seemingly placate stakeholders irked by lengthy processing delays.
For instance: USCIS recently said that it is extending the validity of Permanent Resident Cards (also known as Green Cards) for petitioners who properly file for removal of conditional residence status in marriage to a U.S. citizen and EB-5 investor cases (Form I-751, Petition to Remove Conditions on Residence – Marriage and Form I-829, Petition by Investor to Remove Conditions on Permanent Resident Status – EB-5, respectively) for 48 months beyond the card’s expiration date. Currently in effect, these changes, according to USCIS, aim “to accommodate current processing times for Form I-751 and Form I-829, which have increased over the past year.”
Which is like an announcer during a baseball game telling the audience that play will not be resumed for at least four years owing to management’s incompetence, but during that time, ticketholders can stay in their seats without being kicked out … as long as they fill out those tedious box scores!!
USCIS’s extension is like an announcer during a baseball game saying that play will not be resumed for at least four years owing to management’s incompetence, but ticketholders can stay in their seats as long as they fill out those tedious box scores!!
In typically prosaic fashion, the agency outlined its bread and circuses-style approach further, explaining “[it] has updated the language on Form I-751 and Form I-829 receipt notices to extend the validity of a Green Card for 48 months for individuals with a newly filed Form I-751 or Form I-829. We will issue new receipt notices to eligible conditional permanent residents who previously received notices with an extension shorter than 48 months and whose cases are still pending.” The excitement continues: “These receipt notices can be presented with an expired Green Card as evidence of continued status, while the case remains pending with USCIS. By presenting your updated receipt notice with your expired Green Card, you remain authorized to work and travel for 48 months from the expiration date on the front of your expired Green Card.”
All of this is useful, but hardly substantial, which makes it difficult to feel any real gratitude for the changes. Meanwhile, EB-5 practitioners are in angst over the mountains of paper notices delivered to their offices this week—mountains that are wasteful from both time and economic standpoints. Does USCIS really want to pump personnel and pecunia into piles of papyrus proclamations at the same time it piteously pleads poverty to the public? Really?
An important point to note is that the 48-month extension notices are only useful if a resident still has the I-551 Green Card. The notices state that “presented with your expired Permanent Resident Card, is evidence of your status…” Some background: An ADIT stamp, also known as an I-551 stamp, can be used by a lawful permanent resident as evidence of his or her permanent residence when the permanent residence card has not been received yet, has expired, or has been lost. Traditionally, an ADIT stamp was obtained by contacting USCIS to schedule an appointment at a local agency office and appearing in person to receive the stamp. If said card has been surrendered in order to obtain an ADIT stamp, then these notices are of no use!
So, USCIS, how could the extension notice extend a temporary I-551 stamp that is not a card?
Unfortunately, individuals who have surrendered their green cards at a previous ADIT stamp request are still faced with the tedious, inconvenient, and time-consuming prospect of having to make an appointment and go to the local USCIS office to get the I-551 stamp in their passports as in the past. As such, the “bread and circuses” will be the longer duration of the new ADIT stamp.
Design for Immigrating
Now consider the agency’s recent missive revealing its efforts to redesign Green Cards—a move that likely will boost the appeal of these already highly desirable markers of U.S. residency. The new designs, according to USCIS Director Ur M. Jaddou, “further [demonstrate] USCIS’ commitment to taking a proactive approach against the threat of secure document tampering, counterfeiting, and fraud.”
Our translation: Enjoy these superficially helpful amenities and pay no attention to any inference behind the curtain that this development may have been predicated on USCIS’s inability to prevent fraud. So shall it be written—so shall it be done!
Another of the agency’s commitments includes a variety of upgrades: a high-tech makeover to augment national security and customer service; refined artwork; tactile printing that blends more seamlessly with the art; color-shifting ink; holographic images on the cards’ fronts and backs for extra security; the addition of a layer-reveal feature that comes complete with a partial window on the back photo box; and moved-around data fields whose placement is different from earlier iterations.
USCIS did make it clear that the “introduction of the new designs does not mean that currently issued cards are invalid.” The agency went on to say that “[current] cards remain valid until their expiration date (unless otherwise noted, such as through an automatic extension of a Green Card or EAD as indicated on a Form I-797, Notice of Action, or in a Federal Register notice).”
No, these cards will not help USCIS speed up its oft-delayed processes. But this endeavor offers more than just added protection from fraud and other card-related crimes. For example, USCIS’s initiative might boost the appeal of concurrent filing—brought to life last year through the EB-5 Reform and Integrity Act (“RIA”)—for certain investors, who will now have the opportunity to receive most of the benefits associated with their newly revamped Green Cards within a relatively short time of funding their projects.
Land of Confusion
Now for a bit of typically confusing language from USCIS: “Some Green Cards and EADs issued after Jan. 30, 2023, may still display the existing design format because USCIS will continue using existing cardstock until current supplies are depleted.” Thankfully, the agency explains this further. “Both versions of the cards are acceptable for [Form I-9, Employment Eligibility Verification; E-Verify; and Systematic Alien Verification for Entitlements (SAVE)],” it stated. “Some older Green Cards do not have an expiration date. These older Green Cards without an expiration date generally remain valid; however, USCIS encourages applicants with these older cards to consider applying for a replacement card to prevent fraud or tampering should the card ever get lost or stolen.”
Must EB-5 stakeholders be content with getting answers via trial-and-error without further guidance from USCIS?
If you are wondering how holders of Green Cards without expiration dates might be affected by the agency’s 48-month extensions aimed at those who properly file forms I-751 and I-829, you are not alone. By its very nature, the non-expiring Green Card is not a conditional Green Card and does not expire! It is so like USCIS to mix potentially positive news with perplexingly ambiguous language, yet we expect that more clarification is on the way. EB-5 practitioners will be voicing their opinions at a March 20 virtual USCIS “engagement” allowing for feedback on various mandates, so it is possible questions about the Green Cards will be raised. On the other hand, the agency is not exactly an ace at elucidation. Must EB-5 stakeholders be content with getting answers via trial-and-error without further guidance from USCIS? Should the sector remain complacent with the bread and circuses USCIS hands out?
To channel the old line oft attributed to P.T. Barnum: There’s a sucker born every minute. Unfortunately, it seems that is exactly what USCIS is playing EB-5 practitioners for.
Step right up.
Simon Butler and Aaron Muller also contributed to this article.
 The term “bread and circuses,” a plural noun, refers to a palliative offered specially to avert potential discontent. The ancient Romans were famous for offering bread and circuses to their underprivileged citizens.
Etymology: translation of Latin “panis et circenses”
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