I invested in a direct EB-5 project and got my I-526 and I-485 approved. I successfully hired ten full-time Americans and the business has been fine. But recently we have gone through some serious issues and now we are facing the problem of insolvency. I am supposed to file my I-829 application next month and am wondering what standards USCIS use to decide whether to remove one’s condition on the green card or not. How much does the business performance matter? If one or two of my employees quit before next month, there will be less than 10 employees working in my business by the time I file my I-829. How will this impact my application?
As long as you created 10 full-time positions for U.S. workers before filing the I-829 petition, your I-829 should be approved.
Try and have 10 employees at the time of filing the I-829. Technically if you have created 10 full time positions with legal US workers the case can be approved. The key is to sustain the investment and jobs, ideally for the conditional period.
The performance of the business will likely become an issue. However, this should not stop you from filing your I-829 but, it is advised that you should consult an EB-5 attorney. Also, the economic performance of your business should be thoroughly reviewed but, you cannot simply choose not to file.
If you have sustained your investment and created 10 direct full-time positions within the conditional residence period, it should not matter if your business is not performing well. You should hire an experienced EB-5 immigration attorney to properly prepare and argue your I-829 petition.
Business performance after the two years of conditional residence should not affect your eligibility for condition removal. If you sustained your investment and the new commercial enterprise created 10 full-time positions within the conditional residence period, you have complied with the I-829 requirements. If you provide all of the evidence establishing (1) sustainment of your investment and (2) job creation, it should not matter if your business is losing money or if the number of full-time positions drops below ten. You should consult with an experienced EB-5 immigration attorney to make sure you have the evidence needed to support your I-829 eligibility to remove the condition.
If your business has ten full-time employees at the time of filing the I-829 petition, then the required ten full-time jobs have been created. If your business has less than ten full-time employees at the time of filing the I-829 petition, then U.S. CIS will deny your I-829 petition.
In spite of the insolvency issue for your direct EB-5 project, you have no choice but to file your Petition to Remove Conditions on Form I-829 under the guidance of experienced immigration counsel on a timely basis. If not, we know with a high degree of certainty you will lose your option for obtaining Lawful Permanent Residency in the U.S. without conditions. To the extent possible, you would have to show that in spite of the fact that there are insolvency issues, jobs were created and the minimum required investment was fully invested, all per the commitments made in the initial EB-5 Petition you filed on Form I-526. You should show, of course, that you did create jobs for at least 10 or more U.S. workers even if one or more may quit before next month. Thus, I would file your I-829 petitions just as soon as possible, hopefully before you lose any more employees.
The job creation aspect is most critical. EB-5 laws do not require the company be profitable. Key is the creation of 10 full-time employees and the investment remaining at risk.
According to their draft policy, USCIS will not require that the jobs still be in existence at the time of the Form I-829 adjudication in order to be credited to the petitioner. If you can show that at least ten full-time jobs for qualifying employees were created by the new commercial enterprise as a result of your investment, and such jobs were considered to be permanent jobs when created, you should be okay. Documenting the above when the supporting documents submitted with the I-829 may not support that would take a lot of finesse and good legal argument and presentation of evidence.
The criteria are stated on USCIS website; it is fairly straightforward. However, given your complex business situation, you need to hire an immigration attorney asap.
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