When adjudicating Form I-829, United States Citizenship and Immigration Services (USCIS) applies a very high level of scrutiny. There are a number of factors they assess that EB-5 investors should be mindful of when filing their I-829 petition.
The most important factor is adherence to the criteria set out by the EB-5 program. In accordance with the program’s rules and regulations, there must be evidence that a qualifying EB-5 investment was made. As of March 2022, the qualifying investment amounts are $1,050,000 and $800,000, the latter if investing in a project located in a targeted employment area (TEA). There must also be proof that the investment was made into an eligible new commercial enterprise (NCE). To that end, the investor should append certain relevant documentation to their I-829 petition, such as the NCE’s legal permits and licenses to operate, any contracts, and tax returns.
USCIS will also verify whether the EB-5 investor’s investment generated at least 10 full-time jobs within the project or business. This can be validated through documentation such as tax and payroll records from the NCE. The job creation quota is calculated differently for direct EB-5 projects and those sponsored by regional centers. While direct EB-5 investors are permitted only to count direct employment toward their quota, regional center investors are permitted to also count indirect and induced employment toward their tally.
To an extent, USCIS will also look at compliance with the EB-5 investor’s original business plan, though minor tweaks of a superficial nature may be acceptable. There will also be a section for personal information. If the EB-5 investor or any of their derivative beneficiaries have a criminal record, this must be recorded on the petition. If the primary applicant has passed away and the new petitioner is a family member, this information must also be noted.
The I-829 petition will be subject to high levels of scrutiny by USCIS. Thus, all EB-5 investors are advised to work with an immigration attorney who can ensure all necessary evidentiary documentation is included in the petition.
