I am at the I-829 stage of my EB-5 application. The direct EB-5 business I invested in has failed during my two years of conditional permanent residency. No jobs were created. I know if I file an I-829 application, it will most likely be denied. But I am still considering filing one since a pending application will legally allow me more time to stay in the U.S. Should I file the I-829? What other options do I have to stay legally in the US as long as possible?
If your business still creates the requisite number of jobs within a reasonable time frame, an I-829 petition should be filed and it must be explained how and when jobs will be created. If you are knowingly filing a frivolous petition to buy you extra time in the U.S., it is definitely not advisable.
I wouldn't recommend filing a frivolous petition, but there is a part of the regulations interpreting the job creation as "within a reasonable time." If there is any possibility things can turn around, it may be OK. I'd want to really look into the project first.
An I-829 petition can be filed, when the EB-5 has failed, if you can show within a reasonable time that the required jobs will be created as a result of the investment. The USCIS may consider 12 months as a reasonable time.
Technically speaking, if there is no way for the required jobs to be created by the project, there is probably no point in filing. That said, to make that judgement is very difficult with the facts you provided so far. It might very well be the case that the funds could be redeployed and the required jobs created. If you decide to file and your petition is denied, you can still not be deported until there is an actual judgment against you. Until then, you will be in the country legally without losing your status. Yes, there are many possible options out there, but you certainly need professional advice at this point before proceeding to the next step.
You are required to file the removal of condition petition if you wish to continue living legally in the United States. Your situation does seem dire, however, because no jobs were created. To protect your rights and to consider all of your available options in terms of your immigration matters, you should speak with an experienced EB-5 immigration attorney who can go over all of the details with you.
As an I-829 filing will ask about the investment made and sustained, and how many jobs were created, I question whether you should file the application knowing that you will not be able to create the jobs within a reasonable time considering the business failed. Filing a frivolous application when you know your application has no chance of approval just to buy you some time while it is pending is not something I would recommend.
The investor is not required to show that the business was successful in order to remove conditional permanent residency, as long as the requisite jobs were created. If the project does indeed fail before the job creation, you may also seek to redeploy the investment to another job-creating project.
I cannot advise to file if frivolous, but if you invested and there is a way to save the project, even now, it is worth filing.
You may have other options for staying in the U.S., but that depends on your facts. Meet with an attorney to determine.
It may still be possible to have your I-829 approved if you can make an argument and submit evidence that it's still possible for jobs to be created within a reasonable period of time. There may be extenuating circumstances and mitigating factors that you may be able to argue, so it's best to seek a consultation with an experienced EB-5 firm before you make your decision.
Advisably, you should not file an I-829 application for an EB-5 business that has failed. If you do, the application would be denied, as there are no facts to back such an application. Finally, any presumption that the filed application would be treated as a valid pending application which will allow you "more time to stay in the U.S." will be viewed as unethical.
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