What happens if the EB-5 project has created 90% of the required jobs but then fails?

The investors covered by the created jobs should be OK, and as for the rest, regulations provide that the jobs can still be created within a reasonable time.

If the project is 90% complete, one can only hope that the new buyers will acquire and complete the project and that the bankruptcy receiver will cooperate to ensure the cases are completed. Provided there is no material change, it should be possible to successfully complete the application if the project is completed.

The jobs do not need to still be in existence at I-829 filing. Here is what the USCIS Policy Manual says about this: “In making the determination as to whether or not the immigrant investor has created the requisite number of jobs, USCIS does not require that the jobs still be in existence at the time of the petition to remove conditions adjudication in order to be credited to the investor. Instead, the job creation requirement is met if the investor can show that at least 10 full-time jobs for qualifying employees were created by the new commercial enterprise as a result of his or her investment and such jobs were considered to be permanent jobs when created.” In the context of a Regional Center investment, this will mean showing that the economic analysis of the project shows that at least 10 direct or indirect jobs per investor were created and sustained by the project for at least 2 years prior to the end of the investor''s 2-year conditional residency period. In a direct investment project, you need to show that the jobs were created directly as a result of your investment, so they should be created after your investment, and need to be sustained for at least 2 years. If you can show that, your I-829 should be approved, even if the jobs are no longer there at the time of I-829 filing. Usually the jobs created are allocated to the investors based on their order of filing with the project.

You are in one of the unique situations in EB-5 investing, where a project creates jobs but is unable to repay investors as bargained. The USCIS will generally look at the jobs that were created while the entity was operating. One good thing perhaps is that your at risk requirement is truly met while this project sorts itself out. Notwithstanding, you should examine what exactly went wrong with this project and discuss it with a securities attorney to ascertain whether there are any claims you can pursue for the money that has been lost.

Such a project failure likely will doom the chances to receive a conditional green card unless the project can reorganize and move forward without a material change. Those investors who already received conditional green cards before the material change occurred likely will be able to remove the conditions and receive permanent green cards if they sustained their at-risk investments and the required number of jobs were created directly/indirectly in accordance with the business plan and economic study.