Depending on a number of variables, an incomplete EB-5 project could jeopardize the approval of an EB-5 investor’s I-829 petition. To avoid having their I-829 petition denied, EB-5 investors should be mindful of the following considerations: adherence to the original business plan, having a job cushion, and the successful fulfillment of requirements for filing Form I-829.
If the EB-5 project is incomplete at the time of the I-829 petition’s adjudication and the project was not carried out according to the EB5 investor’s original business plan, this could compromise their chance of being granted permanent resident status. When assessing Form I-829, United States Citizenship and Immigration Services (USCIS) will look at the degree to which the EB-5 investor adhered to the original business plan appended to their I-526 petition.
However, if the project has a substantial job cushion, the issue of the project being incomplete becomes much less consequential. A project’s job cushion is the percentage of generated positions that surpass the minimum quota of 10 jobs per EB-5 investor. Having a job cushion provides a level of insurance to the investors involved and minimizes immigration risk. A large job cushion helps the EB-5 investor ensure that the minimum job quota will be met.
Broadly speaking, the most important factors that USCIS will look at when assessing the EB-5 investor’s I-829 petition is evidence that they invested the threshold amount of funds into an eligible new commercial enterprise (NCE), ensured their investment capital remained at risk, and created the minimum number of jobs. Beyond these considerations, there is no requirement that a successful business must have been established for an EB-5 investor to have their I-829 petition approved.
EB5 investors filing Form I-829 should take care to create more than the minimum number of jobs and create a job cushion, if possible. EB-5 investors are also encouraged to consult an immigration attorney to address any confusion regarding the impact of incomplete EB-5 projects on the processing of Form I-829.
