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The EB-5 Immigrant Investor program has been a remarkable success in recent years. In fact in 2014, for the first time in program history, the demand for EB-5 visas exceeded the amount available under the program. In anticipation of the continuing deluge of EB-5 applications, United States Citizenship and Immigration Services (USCIS) has issued a proposed Policy Memorandum seeking to clarify two important grounds for eligibility: job creation and the sustainment of the investment.

Understanding the approach USCIS takes regarding these and other important issues can help intending immigrant investors move forward in a wise and judicious manner. In the first of a three-part blog series, we will look at the job creation grounds the USCIS will require immigrant investors to satisfy. In the second and third parts of the series we will examine the sustainment requirements and the effects changes in one’s immigration status can have, respectively.

L-1 Visa Holder application for emplyment

The Job Creation Requirement

The EB-5 Immigrant Investor program was established on the basis that the program would bring investment and jobs to Americans. Thus, one of the requirements of the program is that the investment must result in the creation of a “new commercial enterprise.” Further, the new commercial enterprise must result in the creation or preservation of a minimum of 10 full-time jobs for non-family member, qualifying employees.

When an immigrant investor files his or her Form I-526, he or she must also submit proof showing that the jobs have been created or that they are likely to be created in the near future. If the jobs have already been created, relevant tax records, I-9s, and other documents can be used to establish that 10 individuals have achieved full-time employment at the business venture. If the jobs have not been created at the time of filing the I-526, a comprehensive business plan should company Form I-526 that sets forth the need for 10 or greater employees and includes approximate expected hiring dates.

After the filing of the I-526 and greater than 90 days prior to the two-year anniversary of conditional green card status, the immigrant investor is required to file to remove the conditions attached to the visa. This is done by filing For I-829 to remove the attached conditions. The I-829 and supporting documentation must show that the enterprise created or will create at least 10, permanent, full=-time jobs. For “troubled businesses” the evidence must show that the investment maintained or increased employment numbers at the company.

Is the Two-Year Job Creation Period or I-829 Adjudication Process Expected to Change?

There have been questions about the USCIS’ continued use of the two-year period that is deemed to begin 6 months after the USCIS decision on Form I-526. The two year period was created to closely approximate the two-year conditional permanent residence period. While USCIS recognizes that the current influx in applications and high demand has impacted processing times leading to great delays in processing, the agency does not believe it can reliably predict the effect the demand will have or when there might be a regression to the mean. In light of this uncertainty and in recognition of further study still to be done, USCIS has indicated that it is not yet prepared to alter this time period.

immigrant worker with eb-3 visa

As for adjudication on I-829 petitions, USCIS also declined to disturb past agency policy but decided to explain and emphasize the agency’s prior policy. Guidance issued by USCIS for purposes of I-829 adjudications includes:

  • Determining the number of jobs created or preserved – Jobs are not required to remain in existence at the time of the I-829 filing. The investor must show the creation of 10 full-time jobs or, for troubled businesses, the preservation of jobs.
  • Jobs must be full-time and permanent – The agency explains that jobs should not be categorized as seasonal simply because they exist in a seasonal industry like tourism or construction. The crux of all inquiries should focus on whether the job provides “continuous full-time employment.”
  • The inquiry should focus on the position, not the person – Any decision by the USCIS should focus on the description of the position and not the practice of specific individuals. As long as the need for the position is continuous and requires full-time work, the job should qualify.
  • Jobs that Will be created in a “reasonable period of time” —  In keeping with previously stated agency policy, the USCIS will continue to consider jobs created within three years of the immigrant investor’s granting of his or her conditional green card. Jobs created after that time period are not typically considered to have been created within a reasonable time.

While USCIS elected not to make major changes regarding the program despite the high demand, its emphasis on certain points could signify some displeasure with how its agents or petitioning attorneys are carrying out or engaging in the process, respectively.

Rely on Our Miami Investor Visa Lawyers

The competition for EB-5 visas has never been more fierce. Working with an experienced Miami immigration attorney such as the immigration lawyers of Colombo & Hurd who understand the program, its requirements, and the process can be invaluable in today’s competitive environment. To schedule a legal consultation at our Orlando or other convenient office locations, call us at 800-659-7142 or contact us online today.

Rusten Hurd

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