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How has the extreme circumstances exception been interpreted?

My conditional residency expired in August 2013. I filed my I-829 on time and made my investment, but no jobs were created. My one year grace period will expire this August and I am going to argue the "extreme circumstances" exception to request more time to create jobs. Has any case law interpreted the "extreme circumstances" exception? If so, how has the “extreme circumstances” exception been interpreted?

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    Ed Beshara

    Immigration Attorney
    Answered on

    You will need to retain an experienced EB-5 attorney who can prepare a legal brief with arguments and facts to show within a reasonable time that the required jobs will be granted. Even though recent USCIS policies have indicated a reasonable time is 12 months, you may submit verified data that with more reasonable time the required jobs will be created.

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    BoBi Ahn

    Immigration Attorney
    Answered on

    Job creation is one of the basic and essential requirements for an EB-5 employment creation visa. Given that myriad realities and unpredictable factors often affect businesses at their inception, USCIS does grant room for flexibility for job creation. This flexibility permits job creation "within a reasonable time," and whether more time for job creation is "reasonable" is decided based on the totality of circumstances presented. Generally, jobs created within the two-year time frame from when you are granted conditional permanent residency or adjustment to conditional permanent residency may be considered "reasonable." Job creation projected beyond that is generally not considered "reasonable," barring extreme circumstances. USCIS recently released a memorandum briefly clarifying that the "reasonable" time frame does carry an exception for "extreme circumstances" in the case of "force majeure." This means, reviewing the totality of circumstances surrounding your enterprise as a whole, USCIS may grant an exception where the failure to fulfill the employment creation requirement was the result of an unforeseeable act of God, act of nature, or act of parliament beyond the control of the investor and enterprise, and could not have been anticipated or mitigated even with due diligence.

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    Salvatore Picataggio

    Immigration Attorney
    Answered on

    According to current policy, "extreme circumstances" would be occurrences like a hurricane wiping out the project. A project simply not performing would be part of the risk you take as an investor. If you decided to leave this particular investment, many regional centers and projects provide for refunds due to non-performance of the project or other factors.

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    James Wolf

    Immigration Attorney
    Answered on

    When filing the I-829, you must show that the commercial enterprise created or can be expected to create 10 jobs "within a reasonable time." The term "reasonable time" is the period 36 months from the date of your conditional residence approval. The I-829 can be approved based on evidence that the 10 jobs will be approved after the 36 month period if it is shown that "extreme circumstances, such as force majeure, are present." "Force majeure" can include an extraordinary event or circumstance beyond your control, such as a war, strike, riot, crime, or an "Act of God" (such as storms, flooding, earthquake, volcanic eruption, etc.). However, force majeure does not include events which result from your negligence or malfeasance. Also, concept of force majeure does not excuse the lack of job creation entirely; it may only suspend the requirement for the duration of the force majeure event. For an attorney to give you the best set of options, several questions must be answered: Why were zero jobs created? Is there any prospect for job creation in the future? Was your I-526 based on a regional center or non-regional center investment? Were all your investment funds actually spent according to the business plan submitted with the I-526? If not, why not? What was your role in the company in which you invested? What was your role in the company which was supposed to create the jobs? Did you get any response from the USCIS on your I-829? Are you in removal proceedings? Are you inside or outside the United States? You have a very complicated case and very little time. I think you should retain an experienced immigration attorney as soon as possible.

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    Denyse Sabagh

    Immigration Attorney
    Answered on

    USCIS has advised that if the jobs can be created within a "reasonable" period of time thereafter, the petition can still be approved.

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