How does the USCIS determine a timeframe for EB-5 job creation?
I am getting ready to submit my I-829 but I have only created 7 of the 10 full time jobs. By the time the application actually gets looked some more might have been created. Will I be penalized for not having all of the jobs created? What has the USCIS in the past considered a "reasonable time" to create the full job requirement?
USCIS has previously defined "reasonable time" as one year beyond the two-year conditional residence. USCIS makes determination on a case-by-case basis and will conclude what "reasonable" means under your circumstances.
The business plan included in I-526 petition should have contained the terms of how at least 10 full-time jobs would be created. Reasonable time is determined on all facts and circumstances of each particular case. I recommend you have an experienced immigration attorney handle your I-829 petition preparation.
The regulations note that you must file the I-829 for the removal of conditions two years after obtaining conditional residence. Specifically the regulations that the investor must have created or can be expected to create within a reasonable time period ten full time jobs. Please contact our office if you would like to discuss the specifics of your case and your options.
What constitutes a "reasonable period of time" depends on the factors of each individual case. USCIS officer will consider all appropriate evidence that would (a) clearly justify not having completed the job creation by the end of the two years of conditional residence (e.g. the nature of the investment, the industry involved, natural disasters such as Hurricane Katrina, etc.) & (b) show that the full number of requisite new jobs will be created within a clear, defined and credible period of time (typically within 2 and 1/2 years of the alien''s entry as conditional permanent resident) However, a favorable adjudication of the I-829 petition without the requisite jobs having been actually created would be the rare exception.
According to the law and memorandums issued by USCIS, you need to create 10 full time jobs within 2 years of you receiving your conditional residency. If you do not have the 10 full time jobs your case will probably be denied. If you have any other questions, please do not hesitate to contact me.
You can file the I-829 so that it is received by the USCIS just before the two year anniversary of the conditional permanent residency. This may give you more time to show the required employment creation. Also the USCIS will consider supporting documents with the filing of the I-829 Petition to show there will be substantial compliance with required job creation within a reasonable time which can be within 12 months of the filing of the I-829 petition.
When you filed your I-526 and got it approved, there must have been some showing of how and when you would create the 10 jobs (otherwise, the USCIS would not have approved your I-526). Now, at the I-829 stage, you need to explain why those jobs were not created as predicted/promised, and what steps you are taking to make sure that they are created as quickly as possible. USCIS makes a determination on a case-by-case basis as to what is "reasonable" and what is not reasonable under the particular facts and circumstances of each case. You should have an experienced EB-5 immigration attorney handle your I-829 preparation and filing.
The requisite job creation (10) must be met when you are submitting the I-829, and you must submit proof of the 10 job creation by submitting employment records, I-9s etc. The burden of proof is on you to show you have met the 10 job creation requirement, along with the maintaining of the business and investment, when you file the I-829 to remove the conditional permanent residence.