How will a force majeure impact an EB-5 petition?

If before the filing of the I-829 petition there have been health reasons why the 10 full-time jobs are not created, then you can show with the filing of your I-829 petition, that there will be substantial compliance for the hiring of the rest of the ten full-time employees within a reasonable period of time of 12 months.

The positions must be created within the conditional period, or within a reasonable period of time thereafter. If the petitioner can demonstrate a force majeure and provide evidence, then it is likely that he or she will have another year (or whatever is reasonable given the particular circumstances) in which to create the jobs. In no event, however, should the additional time (the reasonable time period) exceed one year.

If you have created majority of the jobs and were not able to create a few to reach the 10 full-time direct jobs due to major health issues outside your control, it is possible USCIS will allow additional time to fulfill the requisite job creation requirement to approve I-829 but it is generally discretionary and on a case by case basis.

There would be a significant risk if you failed to demonstrate that you had hired 10 U.S. workers as that is required for a direct EB-5 investment and you would most likely have your I-829 Petition to Remove Conditions denied. On the other hand, if you invested through an EB-5 Regional Center that relied upon economic studies showing induced or indirect employment, that may not be a factor.

There is no provision for an exemption due to force majeure such as poor health. Just as well, exemptions on the basis of humanitarian grounds are not available. Advisably, investors should talk to EB5 attorneys to seek better option(s).

Force majeure is normally something you cannot control due to some incidents such as earthquakes, hurricane, etc. While some terrible health issues also could be considered as such, it is not within the legal definition of “force majeure.” EB-5 is based on the required amount of investment made and then jobs being created with that investment. If you have made an investment into a direct EB-5 business and you have not been able to run that business due to your health issues, thus, not being able to create the jobs, then I-829 removal of conditions cannot be approved. I am not aware of any humanitarian grounds to excuse not being able to create the requisite number of jobs.

The law requires that your EB-5 business hire 10 United States citizens or permanent residents. To my knowledge, there is no available waiver for this requirement.

Force majeure may be taken into account at various stages. To my knowledge, there is no provision in EB-5 to provide benefits because a foreign national applicant got sick and could not make the business work. It may be a basis for getting an extension of time to reply but, even then, do not be too sure. The key is whether the person has landed and can show substantial compliance. If there are only 7-8 employees and there is a health reason for not reaching the job count projected in the economic report, the USCIS may give more time but it would be discretionary, and one should not anticipate there will be much sympathy.

It might provide you more time to actually create the jobs during the I-829 period when you need to remove the conditions on your residence. But your conditions will not be removed unless the jobs can be shown that they will occur. I recommend you speak with a qualified EB-5 immigration lawyer.