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How is the EB-5 investor affected if the required jobs are not created?

What if project holders are not generating qualified required jobs from EB-5 invested money? Is it the responsibility of project holders to generate required jobs and the investor get cleared I-829/ Green card? Does this affect the foreign investor to get clearance of I 829 / green card? How is the foreign investor protected from such issues?

Answers

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    Reza Rahbaran

    Immigration Attorney
    Answered on

    The investor is the one affected. For removal of condition through the I-829, the creation of 10 new jobs must be met. If such requirement is not met, then denial of I-829 may occur. The best way for an investor to protect from such issue is by hiring a competent immigration attorney with expertise in the EB-5 program.

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    Mahsa Aliaskari

    Immigration Attorney
    Answered on

    Job creation is one of the primary criteria for removal of conditions during the I-829 stage. If the investment was made in a regional center based project, the economic report would control and outline the metrics to show the proper job creation. If those metrics have not been made, options and strategies for addressing the issues will vary and are very fact specific. This should be discussed in detail with EB-5 immigration counsel far enough in advance of the I-829 filing to allow for strategy to be developed.

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    Jeffrey E Campion

    Immigration Attorney
    Answered on

    Ultimately, the person impacted is the investor. Your I-829 won''t be approved. The only way to protect yourself is to perform due diligence on the project and make sure there is a large job cushion in the economic report.

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    Jinhee Wilde

    Immigration Attorney
    Answered on

    Unfortunately, this is not an easy issue to discuss. The short answer to your question on what happens to you if the required jobs are not created is that your removal of condition application (I-829) may not get approved and your temporary (conditional) green card will expire and you will lose your permanent residency. There may be options that are available to you, including but not limited to re-filing I-526 with another business or regional center, but you will need to consult your immigration lawyer for details.

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    Boyd Campbell

    Immigration Attorney
    Answered on

    The investor would provide documentation to show that at least 10 jobs will be created within the following year.

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    Margo Chernysheva

    Immigration Attorney
    Answered on

    Unfortunately, the investor will be effected if the jobs are not created. The investor can sue the project for breach of contract, but the investor will not receive the approval for I-829 if the 10 jobs are not created.

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    Rachel Lew

    Immigration Attorney
    Answered on

    Even though the EB-5 investor has the burden of proving that the jobs would be created by the time of filing his or her I-829, the statutory regulations only require that the jobs can be expected to be created within a reasonable period of time. However, There is no definition of what constitutes a "reasonable time." It has been later interpreted by immigration a reasonable time as being two and half years from the approval of I-526 petition. In making the reasonable time determination, officers should consider the evidence submitted along with the petition that demonstrates when the jobs are expected to be created, the reasons that the jobs were not created as predicted in form I-526, the nature of the industry or industries in which the jobs are to be created, and any other evidence submitted by the petitioner. It is the project holders'' (such as regional centers) responsibility to generate required jobs per their business plans and private offering memorandum. But there are always unexpected change of circumstances due to insufficient number of investors, economy down turns, etc. that affect the projects not being able to develop on time.

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    Rohit Kapuria

    Immigration Attorney
    Answered on

    Unfortunately, this is indeed a risk that every foreign investor bears when making an investment into an EB-5 project. If this is a regional center based application, the securities documents should discuss this very issue as a potential risk. If in fact the job creating enterprise fails to create sufficient jobs, the investor will not be able to get his/her I-829 application approved. The best way for a foreign investor to protect his/her investment (and therefore the EB-5 application), is to carefully (with the aid of an experienced business consultant) determine whether the project could in fact be as profitable/fruitful as the developer has stated in the relevant business plan. The investor should never blindly pour capital into a project without first having it properly vetted.

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    Joseph Best

    Immigration Attorney
    Answered on

    One of the most important elements in any EB-5 case is proof of job creation. And this is precisely why you need a licensed U.S. based attorney specializing in U.S. immigration and nationality law to represent you before USCIS (the immigration service) as the immigrant investor. The EB-5 process is a difficult process. It is not a simple transaction to pay for a green card and call it a day. A good law firm will know how to present evidence that the business entity will create the requisite jobs in order for the immigrant petition to be approved and the conditions on residence to be removed two years later. So pay attention and get good legal help. Also - it is a blatant and irreconcilable conflict of interest for any law firm or attorney to represent the immigrant investor and the company into which the money is being invested. Information obtained by the business into which the money being invested must be frankly shared and disclosed to the immigrant. By definition this is something that is unethical if information is not shared such that the immigrant cannot adequately understand the risks they are taking or if there is little likelihood that the business can or will create the number of jobs needed. The interests of the firm into which you invest and your interests as a self-petitioning immigrant investor very likely will be opposed or certainly are not identical in the best of all worlds. Because of that no firm can represent both sides. My opinion here may be hard to hear for some claiming otherwise - but authorities in immigration and nationality law largely agree that this is a conflict and therefore violates ethical rules. Therefore you as petitioner are responsible to prove that the entity into which you have invested has in fact and in reality created the requisite 10 jobs over two years. Failure to do that means failure to meet the legal requirements of the EB-5 immigrant visa program. How do the interests of investors get protected, you asked? By hiring a good lawyer to protect those interests from the start and those interests alone. If I were filing a case for you and had bad business evidence regarding the likelihood that the business could successfully create the jobs needed, I would have told you the truth at the start. That said, some businesses simply cannot perform as they had hoped at no real fault of their own, without any improper conduct or concealing information from their immigrant investors. So it can be unavoidable that they fail to create the jobs. Here it is good to remember that another aspect of this EB-5 program is that the investment be bona fide, meaning at risk of loss or gain. Remember that these are real investments in real businesses expected to create real jobs. In reality, despite the best efforts of all involved, sometimes things do not work as planned. Businesses fail and investments can be lost. That too is a requirement of the EB-5 program. I hope this helps. It is a tricky business. Any firm who guarantees results or claims that the process is not complex is not being honest or has never attempted an EB-5 filing before. Life has no guarantees. Hard work, creative problem solving and utter diligence are the best we offer. Feel free to contact our firm directly. We have clients all over the world but we are U.S. based and duly licensed to practice law here. Good luck to you.

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    Bill Travis Klein

    Immigration Attorney
    Answered on

    The investor''s project must meet the required job creation numbers in line with the business plan. The I-829 will not be approved if the job creation requirements can not be met. The people overseeing the investment are responsible for this and any failure to meet the project numbers may involve contractual issues between the investor and the people responsible for the project. You should be talking with an immigration attorney about the details of your situation to identify possible solutions.

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    Shahzad Q Qadri

    RC Creator
    Answered on

    If the jobs are not created the investor''s I-829 will not be approved. In the worst case scenario the investor may be required to return to his/her home country.

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    Fredrick W Voigtmann

    Immigration Attorney
    Answered on

    The EB-5 new commercial enterprise must create the required number of jobs by the two-year conditional residence expiration or within a reasonable period of time (within one year of that date, if good cause can be shown for the delay). If the jobs are NOT created, then the EB-5 investor cannot get the condition removed and the green card status will be terminated. While there may be some contractual provisions addressing what happens in this event, there can be no guarantee that the project will return all or even a portion of the EB-5 investor''s funds. You should consult with an expert in financial due diligence before deciding to participate in any project in order to reduce the risk as much as possible. There will still be risk, and no guarantees, however, just as in any investment.

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    Charles H Kuck

    Immigration Attorney
    Answered on

    You will not have your conditions removed, and could possibly lose your investment. That is why you need to be completely comfortable with the EB-5 investment vehicle you choose. ion]

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