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How will a high job turnover rate impact my direct EB-5 application?

I have a direct EB-5 investment business and I am currently holding a conditional green card. My company has had hiring and firing surges recently. In marketing and sales, I have hired three salespeople and two marketing staff, then fired them after a month and advertised the jobs again. All employment contracts are at-will. How will this high turnover impact my EB-5 application at the I-829 stage?

Answers

  • Avatar

    Fredrick W Voigtmann

    Immigration Attorney
    Answered on

    High turnover should not affect your I-829 as long as it is clear that the positions created by the NCE were full-time, permanent positions and not seasonal or intermittent. You also must demonstrate that the persons filling the positions are qualifying U.S. workers. There is no requirement that the U.S. worker stay in the position for any minimum period of time.

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    Bernard P Wolfsdorf

    Immigration Attorney
    Answered on

    Staff turnover will not in itself impact this requirement. However, if you have an extremely high turnover, it may be advisable to have a 20% to 30% job cushion.

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    Daniel A Zeft

    Immigration Attorney
    Answered on

    If your company 10 ten or more full-time employees when the I-829 petition is filed, then USCIS will approve your I-829 petition. If your company has nine or fewer full-time employees when the I-829 petition is filed, then USCIS will deny your I-829 petition.

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    Belma Chinchoy

    Immigration Attorney
    Answered on

    Seems like a lot to fire five people at the same time. How is the company managing with such fluctuations in staff? As long as hiring/firing decisions make sense from a business perspective, the I-829 should be fine. This situation does raise several red flags, however. Make sure your immigration attorney is aware of this ASAP.

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    Mark AM Catam, Esq

    Immigration Attorney
    Answered on

    What is key is creating the 10 full-time jobs.

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    A Olusanjo Omoniyi

    Immigration Attorney
    Answered on

    It should not affect the I-829 process as long as you meet the EB-5 requirement by producing at least 10 jobs. However, at the same time, you cannot successfully argue the reason why you fail to meet the job requirement is because of your high job turnover rate.

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    Jinhee Wilde

    Immigration Attorney
    Answered on

    The job creation is for the jobs that you create, not how many people have worked for you. Thus, if you created 10 full-time, permanent jobs, including those sales and marketing positions, the fact that some of those people did not work out should not matter, particularly because your business is still in the early development stage. However, too much volatility continuing throughout the whole two years may lead to questioning whether those jobs were truly full time, permanent or just temporary. Also, you must keep all the W-2s or paystubs, and I-9s in compliance with every person you hired, which will make your bookkeeping for I-829 more difficult if the turnover continues.

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    Charles Foster

    Immigration Attorney
    Answered on

    The turnover rate is not critical as long as within reasonable periods of time you are able to replace your lost U.S. workers so that at the time you file your petition on Form I-829 to remove conditions, you could show that you created and maintained the required minimum 10 jobs for U.S. workers as required.

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    Stephen Berman

    Immigration Attorney
    Answered on

    If there are 10 full-time employees at all times, it should not be an issue.

  • Avatar

    BoBi Ahn

    Immigration Attorney
    Answered on

    Not necessarily. As long as you can show that the requisite minimum 10 jobs were created, USCIS does not require that the same employees continue to fill those jobs.

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