My mom is investing $1 million into her new housing development business in the U.S. as a direct EB-5 investment. I am wondering if the new commercial enterprise needs to create all the jobs after the filing of the I-526 petition and before the issuance of the conditional green card, or does it have to create all the jobs during the two-year conditional permanent residency?
The investment has to create the jobs within a reasonable time. As a practical matter, since I-526 petitions are taking at least two years, you will likely get a request for evidence when being adjudicated and you need to show all or most of the jobs have been created.
Usually, the new enterprise will be required to show that the jobs have been created at the filing to remove the condition from the green card.
The jobs must be created when the I-829 petition is filed.
After I-526 is fine.
Requisite job creation must be shown at the time an I-829 petition for removal of conditions is filed. If not all jobs are created, the EB-5 investor will have to explain the reasons and show they will be created within a reasonable time. The best practice is for an EB-5 investor to follow the EB-5 business plan and the hiring timetable as evidenced by the business plan, which is submitted with the I-526 petition. Your EB-5 immigration attorney should be able to guide you in this process.
The new commercial enterprise must project that it will create the required number of full-time positions for U.S. workers within the two-year conditional period in order for the I-526 petition to be approved. In order to receive approval of the I-829 petition to remove the condition, the EB-5 investor must demonstrate that the capital was sustained at-risk in the new commercial enterprise and that the jobs were created within the conditional period or within a reasonable period of time thereafter (usually within one year of the end of the conditional period, with good explanation and evidence for the delay).
No, a new commercial enterprise does not have to create jobs before the investors receive the conditional permanent residency in the adjudication of the I-526 petition. Typically, an I-526 petition is filed based upon a promise to invest and create the required number of jobs. However, at the time your mom files her petition to remove conditions on Form I-829, all the jobs must have been created and the funds fully deployed.
The requisite minimum 10 jobs do not need to be all created at the time of filing the I-526. As long as she can show that the jobs were created/maintained at the time of filing for the removal of conditional permanent residency (I-829) (during the two-year conditional permanent residency), that is fine.
Investors are not required to hire 10 employees at the time they file the initial application. However, they are required, within a reasonable time according to the business plan submitted to the USCIS, to hire the 10 employees within two years after applying for the EB-5. Investors must demonstrate the requisite job creation before their conditional green card, which lasts for two years and cannot be renewed, expires. Within the two years, the conditional status period, the investor must hire the 10 employee to be able to obtain the permanent green card. Ten employees must be maintained for as long as the I-829 is pending.
The required jobs must be created after the two-year conditional permanent residency.
She will need to be able to show that she will be able to create the 10 full-time positions by the time of the I-829 filing. I-829 filing eligibility is 90 days prior to the two-year mark of getting the conditional green card. So, the short answer to your question is she does not have to create the 10-plus full-time positions before receiving the conditional green card, but she does need to be able to create and maintain them during the sustainment period, defined as the two-year conditional permanent residency.
All should be created before it is time to file the I-829.
You have to show that the investment created jobs when you file the removal of conditions petition at the end of the two-year conditional residency period. According to policy, the two-year period is deemed to begin six months after adjudication (not filing) of the I-526 form. The business plan filed with the immigrant petition should reasonably demonstrate that the requisite number of jobs will be created by the end of this two-year period.
The job-creation period goes through the conditional residency. Your attorney can advise you specifically about the job-creation requirements and how to present the same in the BP.
The 10 jobs would need to be created before applying for the permanent green card, not the conditional green card.
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