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Will I have a chance to get I-829 approval if my EB-5 project experiences delays?

Assuming my I-526 is approved and I am now living in USA, if the project I have invested in is not completed by the two years (due to severe delays), hence no job creation, am I going to be sent back to my country with no I-829 and do I lose my $500,00?

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    Reza Rahbaran

    Immigration Attorney
    Answered on

    This will depend on the reason for the delays. The return of your investment is not based on the approval of your I-829. For further information please contact Rahbaran & Associates.

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    Kate Kalmykov

    Immigration Attorney
    Answered on

    It depends on the extent of the delays and if there has been a "material change" in the project which has caused the delays. USCIS employs a "reasonableness" standard in the review of petitions at the I-829 stage. However, material changes from the I-526 filing may result in the denial of a petition.

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    Ed Beshara

    Immigration Attorney
    Answered on

    This is a very interesting question covering a number of different issues. Before I answer the questions and issues, let us assume that the foreign national investor is investing in an EB-5 regional center project. First, most EB-5 regional center projects make an offering to the foreign national investor and the investor will have to sign a PPM ( Private Placement Memorandum),or Subscription Agreement stating the requirements for the investor and conditions of the investment.Usually the requirement, is that upon the approval of the I-526 petition the investment funds of the foreign national investor are transferred and committed to the new commercial enterprise and the project. That is, once the personal investment funds are invested and committed and used by the project the foreign national investor will not obtain a return of the investment funds because the project is not financially viable or is not producing the required number of jobs. Second, if the project is not viable and is not producing the required jobs, the I-829 can be filed but will not be approved. As a result,the foreign national investor will not obtain the removal of the conditions of the conditional permanent residency and they will have to leave United States because the conditional permanent residency has now expired. The foreign national investor personal funds in these circumstances are not returned to the investor. Under certain circumstances,if jobs have been created but not the required number of jobs, then at the I-829 filing, the foreign national investor, with supporting documentation from the EB-5 project showing that there has been substantial compliance of the business plan and substantial compliance of required jobs created, and there is going to be in a very short timeline( several months after the filing of the I-829),the required number of jobs being created ; the USCIS,EB-5 Adjudicator may use their discretion and Approve the I-829. Please remember, the adjudicator has discretion either to approve or deny the I-829 under these circumstances. In conclusion, before the foreign national investor chooses the EB5 regional center project it is recommended that the investor perform due diligence as to the business viability of the project and the likelihood of the required number of jobs being created at the I-829 stage.

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    Boyd Campbell

    Immigration Attorney
    Answered on

    Yes. USCIS immigration service officers may require proof that the requisite 10 jobs will be created "within a reasonable time", but yes.

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    Charles Raether

    Immigration Attorney
    Answered on

    This is a complicated question and not one that can be easily answered in this space. But let''s start with the easier question first: No, you won''t necessarily lose your $500,000 if your 829 is not approved and (absolute worst-case scenario), you are placed into removal proceedings to go back to your home country. The investment side of the project is completely independent from the immigration side. Think of it this way: just because you might get 829 approval and get your permanent green card does not mean necessarily that you will get your $500,000 back together with some return, right? The same logic holds in the opposite case if your 829 is denied. As for the more important question about what happens with your 829 if there are delays with the project (and job creation). That?s too broad of a question to answer on a forum like this. A lot depends on the specific facts of the case, the reasons behind the delay; how much of a delay it is; how likely it is that the requisite jobs will be created in the foreseeable future, etc. USCIS has gone both ways in cases like this, and it just depends on the totality of circumstances in your particular case.

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