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What are the job retention requirement for the I-829 processing period?

For direct EB-5, if the jobs are created within the time frame and an I-829 is filed, how important is it to retain 10 jobs for the processing time which is approximately 2 years from the date of submitting the I-829? Can the business move to a non-TEA area after submitting I-829 (during the I-829 processing time)?

Answers

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    Julia Roussinova

    Immigration Attorney
    Answered on

    If the business undergoes material changes after I-829 filing, this should not generally create issues with removal of condition. You should look at the terms of your business plan and also consider the fact that there may be a request for evidence during the pendency of I-829 petition. The conservative approach is to remain in location until I-829 is approved.

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    Ed Beshara

    Immigration Attorney
    Answered on

    The investment has to be sustained until the I-829 is approved. While the required jobs can be created as a result of the investment before the I-829 is filed. After the jobs have been created, the location of the EB-5 business may be changed to a non-TEA location.

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    A Olusanjo Omoniyi

    Immigration Attorney
    Answered on

    The required 10 jobs are supposed to be created within 2 years when the direct investment started. It is not unusual that the investment will remain in place until I-829 is adjudicated as the USCIS may require investigation just to make sure the investment is properly done. Therefore, 10 jobs created must remain in place. Finally, it is not advisable for the business to move to a non-ETA which it was never approved. This would be a material change to its original founding and it may negatively affect any related I-829s that are pending.

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    Fredrick W Voigtmann

    Immigration Attorney
    Answered on

    There is no requirement to retain the jobs/positions for any period of time, but it makes sense that if the positions were/are bona fide, they would last for a reasonable period of time. If the business moves or undergoes any material changes AFTER the I-829 is filed, that should not pose a problem for condition removal.

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    Daniel A Zeft

    Immigration Attorney
    Answered on

    The jobs must be created at the time of filing the I-829 petition.

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    Charles Foster

    Immigration Attorney
    Answered on

    It is important that you maintain the job through the date you file the I-829 petition to remove conditions. As a practical matter, you would be able to move to a non-TEA area during the processing time after filing the I-829 petition.

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    BoBi Ahn

    Immigration Attorney
    Answered on

    Unless the I-829 is approved, you may still have to provide additional information regarding the jobs, project viability and would be still subject to the TEA requirement. I would not recommend moving the business to a non-TEA until the I-829 is fully adjudicated.

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    Bernard P Wolfsdorf

    Immigration Attorney
    Answered on

    On June 14, 2017, the USCIS published guidance on these issues: In summary, it requires that an investor must continue to be eligible for the EB-5 visa classification throughout the adjudication of his or her Form I-526 and until he or she obtains conditional permanent resident status by making an investment that remains at risk. It also requires an investor to sustain his or her investment at risk throughout the 2-year period of conditional permanent residence to be eligible for removal of conditions on his or her permanent resident status. Finally, it indicates that further deployment of the capital of an investor may be used to meet the capital at risk requirement under certain circumstances. The conservative position is that it best to wait until the I-829 is approved before moving to a non-area. It appears that the requirement is that one must have the employees at the time of filing the I-829, but I would also look at the totality of circumstances and the business plan. If they were only hired right before the filing of the I-829, I would be very concerned about terminating so soon.

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    Belma Chinchoy

    Immigration Attorney
    Answered on

    It''s best that you do not make any changes to the business, employment levels etc. during I-829 pendency. Created jobs are permanent.

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