Which EB-5 investors’ I-829 petitions will be approved if the project fails to create the necessary number of jobs?

In regional center investments, multiple investors’ funds are pooled together into one EB5 project. This method offers several advantages, particularly with job creation. Since EB-5 capital in a regional center project tends to compose a small portion of the total project capital, this pooled approach often results in a large job cushion. This creates a surplus of necessary jobs, reducing the stress on investors and making it easier for them to meet program requirements.

For projects sponsored by regional centers, the project documentation should contain a job allocation schedule. Jobs are typically allocated to investors on a first-in, first-out basis in the order of I-829 petition filings. However, project documents could choose an alternative method of job allocation. For example, it can be based on the date investors receive conditional residency status. In projects where job allocation is based on the date an I-829 petition is filed, investors who file first will be allocated the necessary jobs to qualify first, and so on. If an EB5 project has not created enough jobs for all investors, those who file Form I-829 later on will not be able to qualify for permanent resident status. Careful examination of EB5 projects is crucial to avoid such situations. The assistance of an experienced EB5 immigration attorney can be invaluable when evaluating the risk of EB5 projects.

If a project fails to create enough jobs by the I-829 stage, United States Citizenship and Immigration Services (USCIS) offers some flexibility to investors. If it can be demonstrated that the necessary jobs are “in the process of being created”, the investor’s petition will likely be approved. However, these jobs must be created within a “reasonable period” after filing Form I-829. When determining the reasonable period, USCIS will consider any information the petitioner has to offer. This can include evidence regarding when the jobs are expected to be created and reasons why they were not created as previously anticipated.