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As the numbers of filed I-526 Petitions have surged recently, there will arise new and unique issues largely due to the sheer volume of issues which can present themselves during the life cycle of an EB-5 investment. With that in mind, it is helpful to review the regulations which govern the adjudication of an I-829 Petition and what are the requirements of job creation at that stage.
First, it is worth noting that the Immigration and Nationality Act, INA, merely requires creation of full-time employment for ten (10) individuals legally authorized to work in the U.S. Second, the Code of Federal Regulations is also fairly vague in that it requires “[E]vidence that the alien created or can be expected to create within a reasonable time ten full-time jobs for qualifying employees.” This sentence implies creation in the past tense or the future tense, and not in the present tense. Thus, the May 30, 2013, EB-5 Adjudications Policy memorandum (Policy Memo) is the strongest guidance we have regarding job creation at the I-829 Petition stage.
The Policy Memo is helpful only to a certain extent as well. The Policy Memo clarified that it is “…important to note…” that the EB-5 Program does allow an investor to remove the conditions on permanent residency if the investor is in “substantial” compliance with the investment requirements and that the “…jobs will be created within a reasonable time.” While USCIS does not explicitly define “reasonable,” in the context of I-526 Petition adjudication USCIS has explicitly stated a few interpretations which can be helpful here:
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USCIS has taken the position that jobs which are created within 2.5 years of admissions to the U.S. as a conditional permanent resident;
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Jobs which last for at least two years are not considered intermittent, temporary, seasonal or transient in nature (i.e. permanent); and
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USCIS has taken the position that jobs created within a year of the end of the investor’s initial 24-month period of conditional permanent residence will be considered reasonable.
Accordingly, if jobs are lost during the pendency of an I-829 Petition (which are now taking approximately 15.5 months to process!) it may not necessarily lead to the denial of the I-829 Petition. It is fairly clear from the amalgamation of USCIS guidance that jobs created by an EB-5 investment which are in existence for at least 2 years should count as qualifying jobs during the adjudication of the I-829 Petition even if such jobs no longer exist at that time. This is also consistent with the draft policy memorandum USCIS issued in August 2015 regarding job creation and sustainment of an investment.
