Questions & Answers

How will individual employees affect I-829 approval?

So I understand that my investment in a regional center project would have to result in ten full-time jobs for U.S. workers, and that full-time means at least 35 hours a week. But how would my I-829 application be affected if, say, one of these employees showed up to work only twenty hours each week? Or if an employee quit right before I submitted my I-829? Could the actions of an individual employed under EB-5 prevent I-829 approval for an investor?

Answers

• Ed Beshara

  Immigration Attorney

  Answered on January 20, 2015

  In a regional center EB-5 project the USCIS will accept that the required job creation can be achieved by indirect employment creation without proving direct full time jobs. If the required jobs fall short, then USCUS will accept a detailed explanation at the time of filing the I-829 petition that all the required jobs will be completed within a reasonable period in 12 months. On this basis the I-829 will be approved.

• Lynne Feldman

  Immigration Attorney

  Answered on January 19, 2015

  Remember for a regional center that direct and indirect and imputed jobs can count. A 20 hour per week employee would not count, so hopefully there would be enough other workers to satisfy the 10 workers, or you can show there will be within a reasonable period of time.

• John J Downey

  Immigration Attorney

  Answered on January 16, 2015

  As I understand it you are investing through a regional center. The reason for a regional center is that you may count indirect jobs as well as direct jobs. Most regional center projects include many more jobs than are required. Check with the regional center and make sure they include a surplus of jobs for each investor.

• Ian E Scott

  Immigration Attorney

  Answered on January 16, 2015

  The analysis related to the creation of 10 full-time jobs is not as clear-cut as 10 full-time employees being at the company at the point the I-829 application is filed. This is especially the case with a regional center, as indirect jobs are included in the analysis. One person leaving or changing the status to part-time is generally not going to impact the analysis, but the actual "calculation" is something that is somewhat complicated.

• Fredrick W Voigtmann

  Immigration Attorney

  Answered on January 16, 2015

  It is not the individual employee that is counted, it is the position. So if you have one employee quit right before your I-829, you should hire another one quickly so that the USCIS can give you credit for creating/maintaining that full-time job. If you have a full-time employee showing only 20 hours per week, maybe you should fire that employee. A job-sharing arrangement would be allowed, but only if the position is a full-time position being shared by two part-time employees. The full-time position must be staffed at least 35 hours per week. So you could have one part-time employee working 20 hours per week and one part-time employee working 15 hours per week. If properly documented and identified, you would get the credit for creating one full-time job.

• Jinhee Wilde

  Immigration Attorney

  Answered on January 16, 2015

  The job requirement is for creating the full-time, permanent job positions, not hiring the individual person. Particularly in an investment through a regional center project, the job report will be shown based on the confirmation of the economic model that was submitted with the I-526 and/or I-924. There is no reason to dissect the hours or months worked by a specific employee.

• Salvatore Picataggio

  Immigration Attorney

  Answered on January 16, 2015

  With a regional center project, you can count indirect jobs based on the actual expenditures and the economic model used for that project. That is, you do not have to rely on counting the direct jobs of the project, avoiding issues like this entirely. It is one of the benefits of a regional center investment.

• Matthew Kolodziej

  Immigration Attorney

  Answered on January 16, 2015

  If you invest through a regional center, the regional center will have established a formula that shows that at least 10 jobs will be created by each investor. These jobs can be not only jobs created directly by the investment project, but also jobs created "indirectly" by the economic stimulus the project creates in the area. You should contact the regional center and ask to see their business plan and job creation projections, as well as their track record creating jobs and obtaining I-829 approvals for their investors.

• Anthony Korda

  Immigration Attorney

  Answered on January 16, 2015

  In many regional center cases, the I-829 is predicated on indirect jobs. Where actual (or direct jobs are relied upon) they must be full-time. Full-time for these purposes is considered to be 35 hours per week or more. The nature of a job will be the hours that the employee is expected to work and will not depend on sickness or unintended absences. However, an employee who regularly works only 20 hours per week may ultimately be categorized as "part time" and the employer should closely monitor this and prevent flagrant abuses. Similarly, USCIS require that the jobs have actually been created, but also envisages a situation where the jobs have not yet been created but will be created "within a reasonable time." In practice, these problems will be avoided if indirect jobs created by "economic effect" or "expenditure" are relied upon.