What should investors at the I-829 stage do if fraud is found in the EB-5 project?
I invested in an EB-5 project and obtained my conditional green card. Last year I submitted my I-829 application and it is still pending. Recently I was informed that the EB-5 project I invested in is under fraud investigation. Now I am worried about my I-829 application. The job creation requirement has been satisfied and I have provided evidence to USCIS. Could USCIS deny my I-829?
USCIS could potentially deny your I-829 application if fraud is present. In general, the requirements to remove the condition are that you sustained your investment in the new commercial enterprise and that it created the requisite number of full-time jobs for qualified U.S. workers within the conditional period or within a reasonable period of time. If you suspect fraud in your EB-5 project, you should contact and consult with an experienced EB-5 immigration attorney who can advise you and protect your rights and your investment to the greatest extent possible.
If the EB-5 project is under fraud investigation, you should learn as much as possible about same, but given the fact that you have already filed your I-829 petition, based upon the facts of the jobs that were created and the funds were invested, it&39s still possible that the USCIS could approve your I-829 petition to remove conditions.
Unfortunately, fraud can be spell trouble for investors in various ways, including denial of I-829, but the nature of the fraud may not necessarily results in denial of I-829s. In your case, make sure you and your EB-5 attorney are on top of the situation and are kept abreast of the investigation purposely to devise strategies to protect your interest. Chances are your I-829 looks approvable and the fraudulent act(s) that may be unearthed should not negatively impact your application.
It is a complex question for an online forum. I would recommend that you discuss this with your immigration attorney. If the requirements have been fully met, that is, EB-5 capital was fully used to create the minimum required jobs and you sustained your EB-5 funds at-risk through your conditional residency period up to the filing of I-829, your I-829 petition should likely be approved.
As long as the jobs were created before you filed your I-829 petition, you should have no issues with the removal of your conditions. If the jobs were not created by then, you could potentially face issues, but in your case you should be fine from the standpoint of obtaining a permanent green card. That said, you should certainly retain a competent attorney who could argue your case and sue the regional center and, if applicable, the developer, so that you could recover some or hopefully all of your funds.
If the money was invested and the jobs created, your case might be approved even if the promoters committed fraud in some way. You should be consulting your own lawyer on this. A lot depends on what the fraud was and on whom it was committed.
They could, but USCIS has worked with investors of projects in fraud situations before, and depending on the circumstances, may do so again. They may process the I-829 or allow you to reinvest and retain your priority date, or some other options.
This is a very complicated and fact specific question. However, if the requirements are met — you invested the full amount of money, the full amount of money was deployed to and used in the project, and the jobs were created — you should still have your I-829 approved. If the fraud impacted any of these requirements, you may have to find a way to cure the defect. In my experience, the two places where we see issues is if 100% of the EB-5 money was not transferred to and used in the project and the jobs were not all created. Luckily, the I-829 regulations allow an investor to be “in the process of investing” at the time of the I-829. They also allow for jobs to be created within a reasonable time, which means not all of the jobs need to be created by the time of the I-829. The I-829 regulations also allow for approval if an investor has substantially, and in good faith, complied with the requirements. So if the fraud had nothing to do with the investor and resulted in a very small amount of the EB-5 money not getting to the project, then the petition should still be approved. A fraud that causes a loss of money for the investor but does not prevent the requirements from being met should not result in the denial of an I-829. Here are some tips for investors in this situation: Don't panic! Certainly this is not good news, and you may be in for a long fight to keep your green card, but there are things you can do. All is not lost at this point. Don't delay. Act now. The sooner you find out about a problem, the better chance you have of fixing it or preventing it from being a bigger problem. Find out everything you can. The more information you have, the better. Get together with other investors in the project. Any possible solution to the problem is likely to involve all the investors, so it helps if you are working together. Find an immigration lawyer with experience with troubled projects. There are only a very small number who have dealt with this kind of case, and experience is important, as is the ability to advise on other possible immigration options. Remember, even if USCIS denies your I-829, you still get to renew it in removal proceedings. Removal proceedings typically move very slowly and could take years, during which time you can either fix the problem with your I-829 or find another immigration solution. Various legislation and regulations have been proposed that would allow an investor to retain his or her priority date in a new I-526 if there is fraud, material change, etc. that is outside of the investor's control. This would provide another route for solving the problem. Unfortunately, we don't know when such legislation or regulations might be enacted, or what exactly they will say. But as mentioned above, the denial of your I-829 is not the end of the road. Between the nearly three years it is taking to process I-829s and the time it takes to go through removal proceedings, you may eventually be eligible for relief from any new legislation or regulation.