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Questions & Answers

What if my EB5 investment fails after the two year window?

What if the venture I invest in drops below the ten person employment restriction? Is there a difference if this happens while I am being reviewed for a Permanent Resident card and after the process? Can my PR card be taken away?

Answers

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    Mahsa Aliaskari

    Immigration Attorney
    Answered on

    When you file the I-829 removal of conditions you will need to show that you have created the 10 jobs or that you will be meeting the 10 job creation requirement within a reasonable time. USCIS will review all of the facts and evidence presented to determine if the business can be expected to create the jobs within a reasonable period of time. The presentation of the information will be critical in this respect. If USCIS does not approve the I-829 based on lack of job creation, then you would no longer be a legal permanent resident.

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    Reza Rahbaran

    Immigration Attorney
    Answered on

    At the time you file your I-829 removal of conditions you must be able to demonstrate that you have met the job creation requirements or that you would be meeting them within a reasonable time. USCIS may still approve your I-829 if all 10 jobs have not been created but it will be contingent on proving that the jobs would be created shortly and possibly having an acceptable reason for the delay.

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    Julia Roussinova

    Immigration Attorney
    Answered on

    At the time you file an I-829 petition for removal of conditions on your conditional (2-year) green card, it must generally be demonstrated that you have either created the minimum 10 full-time jobs or the jobs will be created within a reasonable time frame, if for some reason not all jobs have been created. If you have already received your permanent green card, it no longer matters if any jobs will not be maintained. You should consult an experienced immigration attorney to discuss the specifics of your case.

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    Lei Jiang

    Immigration Attorney
    Answered on

    Yes, if an EB5 investment cannot generate required jobs, your conditional green card will be taken away (figuratively speaking).

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    Roberto Ortiz

    Immigration Attorney
    Answered on

    You can lose your conditional residence if after two years the 10 jobs are not created. That is the basis of the Removal of Condition application.

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    Shahzad Q Qadri

    RC Creator
    Answered on

    Unfortunately, statutorily if the investment fails you are precluded from getting a permanent greencard.

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    Fredrick W Voigtmann

    Immigration Attorney
    Answered on

    There is some disagreement about this, but from a practical standpoint, it is important to show (and maintain) the job creation at least until you receive your permanent green card. If, however, you create the jobs in the second year and file your I-829 petition in a timely manner with evidence of the job creation, you could argue that you have maintained your investment and substantially complied with the job creation requirement, even if the employment level subsequently drops below 10 full-time employees, either before or after the I-829 is approved. It is unclear what USCIS would do if the job level drops prior to I-829 approval, but if they issue a Request for Evidence and you cannot show that you still have the 10 full-time qualified employees, you may have difficulty in removing the condition.

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    Stephen Berman

    Immigration Attorney
    Answered on

    Your application for removal of condition would be denied and you would no longer be a permanent resident.

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    Emre Ozgu

    Immigration Attorney
    Answered on

    If it happens before you get your PR then yes, it can lead to a denial and loss of residency.

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    Karen Weinstock

    Immigration Attorney
    Answered on

    If you do not meet the program criteria your conditions will not be removed and you will no longer be considered a permanent resident. This is very dependent on the facts of the case. For example, you only create 2 full time jobs after 2 years, probably this will be denied. But on the other hand if you create 8 or 9 jobs and you can demonstrate when/how the additional jobs will be created this situation may get approved.

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    Pari Sheth

    Immigration Attorney
    Answered on

    If a Permanent GC has been issued, the USCIS cannot take it away arbitrarily.

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    Ed Beshara

    Immigration Attorney
    Answered on

    Once the EB-5 investor obtains unconditional permanent residency, it will be retained even if subsequently the EB-5 fails. However, based upon substantial compliance of the project business activities and the employment creation, the EB-5 conditional permanent resident may successfully apply and receive unconditional permanent residency at the time of filing the I-829 petition.

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    Jinhee Wilde

    Immigration Attorney
    Answered on

    There is a risk that your PR could be taken away if you cannot prove the job creation. In order to maintain your permanent residency status, you must have I-829 Removal of Condition favorably adjudicated. You must prove at that time that you have: (1) invested the capital; (2) sustained the investment and enterprise; (3) created or can be expected to create 10 full-time jobs within a reasonable period of time. If the requisite number of jobs are not created, then USCIS will review the reasons why, including the industry the jobs are to be created and whether the jobs were only temporary jobs rather than permanent jobs. Thus, it will depend on how artfully the I-829 is prepared and submitted, so that the drop in the jobs could be explained.

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    Philip H Teplen

    Immigration Attorney
    Answered on

    The jobs must be maintained until the Permanent Card issued. After that it does not matter. I will be happy to discuss with you.

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    Lynne Feldman

    Immigration Attorney
    Answered on

    Yes, unless the jobs are created or will be created in a reasonable period of time you will not receive the new 10 year green card. Very important to do due diligence in selecting a solid, reputable project both for investment and immigration purposes.

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    Bernard P Wolfsdorf

    Immigration Attorney
    Answered on

    You can be placed in removal proceedings, but might be able to make another investment and try again.

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