Generally, consular processing time does not affect the length of time allowed for EB-5 job creation. To satisfy the EB-5 program’s requirement to create at least 10 full-time jobs for qualifying US workers, EB-5 investors must create the required jobs within about two years of receiving conditional permanent resident status. Thus, the investment must begin creating jobs once the I-526 petition has been approved.
The basic steps in the EB-5 application process are filing the I-526 petition and obtaining conditional permanent resident status upon I-526 approval. Conditional permanent resident status is valid for two years, during which the investor must physically live in the United States. Within the last 90 days of the conditional residence period, the investor must file Form I-829 to remove the conditions on their permanent resident status. One of the key aspects of Form I-829 is proving that the investor has complied with all the requirements of the EB-5 program. Therefore, at this stage, the investor must provide proof that their investment created 10 full-time jobs for US workers.
For investors who invested through a regional center, proving job creation involves working closely with the regional center and developer to prove that the hard and soft costs included in the economic report and business plan were accurate. They can provide evidence such as receipts, invoices, and other proof of expenditure in support of the projections. Other supporting documents include W-2 forms, I-9 information, and financial statements, ideally ones that have been audited.
Investors who made direct EB-5 investments can prove job creation through W-2 forms, as the new commercial enterprise in which the investment was made must directly employ the workers to count toward job creation totals. Each position must last—it does not have to be filled by the same worked for the entire two years. Job-sharing agreements are also permitted.
