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How could a shutdown of a business during the I-829 stage impact my EB-5 application?

We are currently waiting for a decision on our I-829 application. My direct investment is no longer in operation, but it has shown a period of successful operation with the required creation of jobs. Seven months after we filed I-829, the business was no longer in operation, but my investment is still with the business. Could my I-829 be rejected for this reason?

Answers

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    Ed Beshara

    Immigration Attorney
    Answered on

    As long as your personal investment was sustained and the required jobs were created during the two-year period of conditional permanent residency, your I-829 petition should be approved.

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    Bernard P Wolfsdorf

    Immigration Attorney
    Answered on

    The shutdown will have no effect on your I-829.

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    Charles Foster

    Immigration Attorney
    Answered on

    If you have already filed your petition for removal of conditions on Form I-829, you would've been required to show that you had met all the requirements, including the fact that you made the required investment of at least $1 million or, if in a TEA, $500,000 and the 10 jobs were created. If the business went out of operations seven months after the filing of your I-829 petition, it could adversely affect the approval of the removal of your conditions. But for the most part, the I-829 petition will be adjudicated based upon the conditions as of the time you filed that petition. Even if at a subsequent date the business goes out of operations, you could still arguably be allowed to remove conditions based upon the fact that the jobs were created and the money was invested.

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    A Olusanjo Omoniyi

    Immigration Attorney
    Answered on

    There is a lot of contention on the issue of incomplete projects during the I-829 stage, particularly with a direct investment EB-5 situation and even more when the business in question is no longer in operation. The issue of approval for the I-829 is debatable. If the jobs were created when you filed the I-829 and they were in accordance with the underlying business plan for the investment, your I-829 application and the demise of the business is simply a product of business cycle, your I-829 may be approved. If, however, the demise of the business is a result of lack of good business plan, there may be a presumption that the I-829 is not approvable. Be ready to answer either a request for further evidence or perhaps intent to deny from the USCIS, by which you have to provide more information on what led to the demise of the business. Advisably, make sure your EB-5 attorney is aware of the situation with the business in question ahead of time before any issue is raised by the USCIS.

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    Marko Issever

    EB-5 Broker Dealer
    Answered on

    Since the required jobs were created by the time of I-829 filing, technically you should be fine. But, as we all very well know, nowadays, RFEs - or worse yet NOIDs - are being issued more frequently than the past, as the process has gotten incredibly scrutinized. There is no question that you need an attorney to represent you in case you are questioned.

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    Jinhee Wilde

    Immigration Attorney
    Answered on

    USCIS will try to find that business when they are adjudicating and if they do not find it, they will probably issue a notice of intent to deny (NOID). However, once the jobs have been created, they remain as created according to their policy. Thus, prepare your documents to fight that. Your attorney who prepared the I-829 should have his ducks in a row anticipating USCIS action.

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    Belma Chinchoy

    Immigration Attorney
    Answered on

    Possibly. There could be an issue of an at-risk investment here. But it is really hard to tell without understanding more about your business. You need to consult with an attorney.

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    BoBi Ahn

    Immigration Attorney
    Answered on

    If there is no request for evidence asking for information and documentation regarding the business operation and maintenance of the job creation, you can finish out the process. If such enquiry/RFE is issued, your current situation will impact the I-829 processing since it is a direct investment.

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    Salvatore Picataggio

    Immigration Attorney
    Answered on

    A recent USCIS call shared that the conditional residency period ends with the filing of the I-829 petition, not its approval. So, at the time of filing, you showed you made the investment and created jobs, so the failure of the business while the I-829 is pending will probably not affect the petition.

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