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How can I downsize the direct EB-5 business after filing the I-829 petition?

We just filed an I-829 for a direct investment business with 23 employees. This business is a holding company of two different branches located in different cities, both in TEA, with 11 employees at one location and 12 at another. Since we have filed the petition, can we downsize and merge the operation into one office which can be managed by 10 employees? Is it mandatory to maintain 10 employees when I-829 is pending?

Answers

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    A Olusanjo Omoniyi

    Immigration Attorney
    Answered on

    Generally, it is advisable that you should complete the I-829 petition processing before you proceed to downsizing a business. There may be a few issues that need to be addressed, as the petition is being processed, including the number of employees.

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    Bernard P Wolfsdorf

    Immigration Attorney
    Answered on

    It is not mandatory, but often advisable if there are any issues just in case you get a request for evidence.

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    Marko Issever

    EB-5 Broker Dealer
    Answered on

    You are actually asking multiple questions here. USCIS in its Policy Manual at Footnote 4 to Chapter 5, Section A.2 (See 8 CFR 216.6(c)(1)(iii)) clearly states, "The sustainment period is the investor's two years of conditional permanent resident status. USCIS reviews the investor's evidence to ensure sustainment of the investment for two years from the date the investor obtained conditional permanent residence. An investor does not need to maintain his or her investment beyond the sustainment period." So technically, yes, you can downsize. You do not need to maintain 10 employees when I-829 is pending. That said, if you are asking my honest opinion, unless you are in financial hardship, although there does not seem to be any valid legal basis, I would not make any changes until the I-829 is approved. Again, though you are justified in wanting to save and eliminate redundancy you need to weigh the pros and the cons.

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    Julia Roussinova

    Immigration Attorney
    Answered on

    Generally, you would need to have created the requisite jobs and sustained your EB-5 investment at-risk during the conditional residency period. This is a complex question for an open online forum, though, and you should have a discussion with your EB-5 immigration attorney who knows your EB-5 business plan and specifics of your case to advise you about downsizing.

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    Lynne Feldman

    Immigration Attorney
    Answered on

    All documents would need to be reviewed to advise and be sure you are consistent with what you represented and that there is no material change requiring an amendment.

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    Fredrick W Voigtmann

    Immigration Attorney
    Answered on

    You can downsize your operation as long as you have sustained your investment and created the required number of jobs during the conditional residency period (or within a reasonable period of time). Since the conditional residency period defined by USCIS is the two years prior to your I-829 filing, it stands to reason that activity which occurs after the I-829 is not relevant. It would be wise, however, to maintain the 10 employees and the records to prove the hiring/job creation up until the time you receive your permanent green card.

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    Charles Foster

    Immigration Attorney
    Answered on

    Since you have filed the I-829 petition, and presumably maintained all the jobs in the investment for the requisite period of time, it would be better not to downsize and merge the operation until your I-829 petition is favorably adjudicated. However, if it's absolutely necessary, and you merge the operations into one office which still has 10 employees, then again, there should be no issue. It is safer for you to maintain the 10 employees until the I-829 petition is adjudicated.

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    Belma Chinchoy

    Immigration Attorney
    Answered on

    It's best that you discuss with your attorney the job creation and other I-829 requirements.

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    Salvatore Picataggio

    Immigration Attorney
    Answered on

    USCIS recently clarified that, at least for RC-based EB-5, the filing of the I-829 was the end of the "sustained investment" requirement. It's possible that USCIS would see it as the end of the job-creation requirement as well. However, it seems you will still have 10 qualifying job positions, so it may be moot.

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