By Adrian Toh
Given the ambiguity regarding which job creation documentation is acceptable by USCIS at the I-829 stage, let’s look at practical documentation strategies that often result in I-829 approvals. Two major areas of job creation are direct job creation through operations as well as job creation through construction and furniture, fixtures and equipment (FF&E) expenditures.
DIRECT JOB CREATION
Regarding direct job creation, three main documents are required: an employee roster, one payroll period, and either E-Verify or I-9 documentation. Regarding the employee roster, the Job Creating Entity (JCE) prepares a list of employees that details each employee’s name, full-time or part-time status, and initial date of hire. If two employees are combining for one full-time position, their position must be the same and ideally their working hours will not overlap. For the payroll period documentation, usually one bimonthly payroll will suffice, either issued by the JCE or by a third-party payroll firm, and the JCE must be the operating entity listed. For the bimonthly payroll, the total hours for each employee should be a minimum of 70 hours, or an average of 35 hours per week. If employees for that pay period are under the required minimum, include a declaration from the JCE, a paid time off form, or other evidence showing that the employee did not meet the minimum hourly requirement for that particular pay period due to vacation, illness, or other excused time off. The latest 2016 policy memorandum suggests that the age of the payroll doesn’t matter, provided that when the jobs were created, they were intended to be full-time qualifying positions. Finally, to document eligibility to work in the United States, include either E-Verify confirmations or I-9s with attached copies of Social Security or identification cards. However, if some Social Security or identification cards are missing, as long as the information is listed in the I-9, it shouldn’t be an issue. For direct job creation, submitting these three documents can lead to approvals without any further requests for evidence.
CONSTRUCTION AND FF&E EXPENDITURES
Regarding construction expenditures, provide the final construction draw summary or final application for payment certificate from the contractor or third-party construction management company that shows the funds were 100 percent disbursed and details the total costs incurred from construction. This summary bypasses the need for a complete set of invoices or wire transfers.
Regarding FF&E expenditures, because there may be multiple vendors involved, have the JCE prepare an Excel spreadsheet listing all the vendors, the description of the products purchased, and the final sale price. To support the spreadsheet, include as a separate exhibit a few sample invoices to substantiate the cost summary. The complete set of invoices is usually not required, and USCIS has explicitly stated in the past that substantial compliance is usually enough. However, the more complete the documentation, the better the chances of approval.
UNAVAILABLE DOCUMENTS
For some projects, due to the length of time between the project’s completion and the filing of the I-829 petition, some evidentiary documentation may no longer be available. One project which received I-829 approval used a contractor that was no longer in business after construction was completed years ago. Therefore, at the time of filing the I-829 petition, evidence of the construction costs could not be obtained, even though they were required to prove job creation. In that instance, you need to hire a third-party construction firm to review the initial property appraisal report, the executed construction contact and perform an on-site inspection of the property. The third-party construction firm can then prepare an evaluation summary and provide its own construction bid estimate, which can conclude that the construction and renovation performed were as stipulated in the initial construction contract and that the total costs incurred were within reasonable business practices in the industry. When in doubt or when evidence is unavailable, rely on third-party evaluations and evidence of reasonable business practices. This way, you can obtain an I-829 approval with no further requests for evidence.
Adrian Toh
Adrian Toh received a B.A. in English literature from the University of California, Irvine, and a J.D. from the University of California, Hastings College of the Law. For his EB-5 practice, he advises individual investors, regional centers and corporate clients on all aspects of the EB-5 program. Toh has filed over 500 EB-5 petitions and was instrumental in obtaining 10 distinct regional center approvals. Prior to his EB-5 practice, Toh worked in the fields of financial planning, strategic debt relief, real estate litigation and a wide spectrum of immigration law.
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