If the USCIS does not receive evidence of sufficient job creation with the I-829 petition, it will either issue a Request for Evidence (RFE) or a Notice of Intent to Deny (NOID or ITD) and request such evidence. Since it is the petitioner's burden to establish the job creation by a preponderance of the evidence, it would make sense to give the USCIS a "heads up" if it is clear that the job creation requirement has not been met at the time of I-829 filing and that it is likely to be met within a reasonable period of time (within one year) and the reasons/evidence therefor. The USCIS should approve the I-829 petition if the evidence shows that the job creation is more likely than not to occur within the year. They will not need to keep the petition open in order to verify that the jobs were actually created. If the I-829 petition is denied, then the investor has the option to appeal, to file a motion to reopen/reconsider, or to raise the I-829 issues again in removal proceedings before an immigration judge.
According to the May 2013 USCIS Memo, jobs must be created within a one year reasonable time period to receive an unconditional green card after an I-829 petition is filed. How does USCIS verify these jobs were created if the actual job creation wasn't evidenced in the I-829 petition? Will USCIS keep the petition pending for one year after the conditional green card has expired and then issue an RFE requesting evidence that the jobs were created? What is the general procedure that USCIS follows when it comes to this policy?
John J DowneyAnswered on
If you are speaking of regional center jobs which include indirect jobs then the USCIS cannot calculate them at the time of the I-829. If they have accepted the business plan that included an econometric study showing the jobs would be created then there is no way for them to look back. If all the other aspects of the project have proceeded correctly then the I-829 should be accepted. Direct jobs are a different matter as you would have to produce W-2s. You would need a valid explanation as to why they were not produced and an equally valid projection as to when they would materialize.
This moves into the issue of "substantial compliance," where if the data shown in the I-829 would make it reasonable that the jobs would be created in that next year, the I-829 is approved.