By: James Cormie and Jennifer Hermansky
The I-829 petition to remove conditions on permanent residence represents the final step in the EB-5 process. The documents an EB-5 petitioner needs to file with the I-829 petition to show job creation depends on the project type and whether the investor made a direct EB-5 investment or made an investment into a business under the auspices of a regional center. Specifically, direct investments require an investor to invest directly into a project with the stipulation that they create or, in a troubled business preserve, at least ten full time and permanent jobs for U.S. citizens or permanent residents. On the other hand, an investor in a regional center project must document the creation of indirect or induced jobs. In either case, the United States Citizenship and Immigration Services (USCIS) looks for certain documents. Below is a brief overview.
In a direct employment situation, an investor needs to include in their I-829 petition several documents that show (1) the number of full-time (35+ hours) jobs created and (2) the citizenship or permanent residence status of their employees. Here is a non-exclusive list of documents to be filed with the I-829 petition for USCIS:
- Documents showing full-time job creation
- Payroll reports
- Time records
- IRS Form 941, Employer’s Quarterly Tax Returns
- Documents showing citizenship or permanent residence
- Permanent Residence Card
- U.S. Birth certificate
- U.S. passport
- Consular Report of Birth (of U.S. citizen) Abroad or Certification of birth
- Naturalization Certification
- Certificate of Citizenship
The proof of citizenship or permanent residence status for the I-829 does not necessarily match up with the requirements for proof of work authorization on the Form I-9. Furthermore, asking for such types of proof at the I-9 stage gets the employer in trouble with something known as “document abuse.” Nevertheless, careful timing of asking employees for these documents avoids this problem.
Regional Centers document indirect or induced jobs, so the task of document production is different. The job creation is projected by economists using statistical methods at the I-526 stage. Economists usually calculate indirect job creation based on the revenue and expenditures of the project, and in some cases, direct jobs. Although the documentation may change based on the choice of statistical model, here is a list of documents that the investor may need to show USCIS when presenting their I-829 petition:
- For Construction Jobs:
- Auditor’s reports of expenditures, tax returns, invoices, cancelled checks or wire transfers showing payment of construction expenditures
- Executed construction contracts and draw schedules
- For Operations Jobs:
- Revenues through things like tax returns and audited financial statements
- Hotel occupancy rates through things like internal reports, tax returns, and financial statements, and evidence that this demand
- Form I-9s, immigration status documents, payroll records showing I-9s and a W-2 for each direct employee if “direct employees” are the economist input
- Tenancy through things like leases, employment reports from tenants.
Other facts depending on the models that economists use may be necessary, but remember- the more data the better.