In the U.S. EB-5 investment immigration program, whether an investor can obtain a permanent green card depends on the outcome of the I-829 application.
According to U.S. immigration law, EB-5 investors can submit the I-829 application to request the removal of the conditions on their two-year temporary green card after one year and nine months, which is three months before the expiration of the two-year temporary green card. During this period, the investor's investment of $500,000 or $1,000,000 has already entered the actual usage phase and has borne all commercial risks. If the I-829 application is unsuccessful, the investor faces the dilemma of not obtaining a U.S. green card while also bearing investment risks or suffering investment losses. Therefore, this point is the most risky moment in the entire investment immigration cycle and requires the investor's attention.
The U.S. Citizenship and Immigration Services (USCIS) has very clear approval conditions for the I-829 application:
1. The investor has substantially invested $500,000 or $1,000,000, has borne real investment risks, and has maintained this investment throughout the two-year conditional green card period;
2. The investment has created or will create 10 full-time jobs within a reasonable period.
On this basis, the memorandum issued by the USCIS on May 30, 2013, made some minor adjustments, two of which are worth noting for investors:
1. Creating 10 jobs within a reasonable time: When applying for the I-829, not all 10 jobs need to have been created. However, it must be demonstrated that all positions will be created within a "reasonable time."
2. Even if there are changes in project operations after the approval of the I-526 and before applying for the I-829, as long as the investor can meet the USCIS requirements for removing the conditions on the green card, the investor's I-829 application can still be approved.
The new memorandum reflects a more lenient attitude from the USCIS towards the I-829 application, which is undoubtedly the best news for investors. However, investors should not be blindly optimistic, as meeting the requirements for the I-829 application is still very stringent.
Next, we will specifically analyze the above I-829 approval requirements:
1. The investor has invested and borne risks, and this investment has been maintained throughout the two years.
Since the I-526 application is reviewed based on written or documentary evidence, as long as the investor has actually invested funds (and can prove the legal source of funds), submitted a qualified business plan, and can demonstrate that it is reasonable to create 10 jobs in the future, the USCIS can approve the investor's I-526 application. U.S. immigration law thus stipulates a two-year conditional green card to verify whether the investor's investment is being conducted legally. At the I-829 application stage, the investor must first prove that they have invested the legally required $500,000 or $1,000,000, secondly, prove that this investment is a real investment that bears investment risks, and finally, prove that this investment has been maintained for two years, meaning it has not been withdrawn in any form by the investor.
In actual cases where I-829 applications have been denied, there are two categories related to the requirement that the investment must bear actual risks:
The investor's funds have not been actually invested in the investment project, and the investor's investment does not actually require $500,000 or $1,000,000;
The investor's investment is subject to a "redemption" clause, where the investing party promises to redeem the investor's investment in whole or in part at the agreed time.
In these two situations, the investor's funds have not actually borne all investment risks, thus failing to meet the conditions for investment immigration.
In cases where the I-829 application has failed, another common situation related to investment is that the investor failed to maintain the $500,000 or $1,000,000 investment within the two years. This could be due to either directly withdrawing the investment or using various means such as fixed dividends to indirectly withdraw the capital. Such practices also violate the intent of investment immigration law.
It is important to remind many investment immigration applicants, especially many "smart" investment immigration applicants, that various "tricks" that investors can think of have already been tried and failed by predecessors. Investors should not attempt to circumvent the intent of investment immigration law to create a "zero-risk" investment immigration. In fact, whether through self-investment immigration or through regional center investment immigration, if one emphasizes or pursues "zero risk" unilaterally, it will directly violate the provisions of investment immigration law, ultimately leading to the failure to achieve the green card objective and instead incurring the greatest risks.
2. The investment has created or will create 10 full-time jobs within a reasonable period.
Another major point in proving the I-829 application, or the most critical point, is to demonstrate that the investment has created 10 jobs. In all past cases of I-829 application failures, the most common example is that the investment failed to generate sufficient jobs at the time of the I-829 application. To meet the job creation requirement, some applicants have even forged employment records, but this is clearly not successful.
For most investors, the job creation issue is the biggest hurdle preventing them from passing the I-829. According to data obtained from the USCIS by IIUSA regarding I-829 processing, from 2008 to 2013, job creation issues accounted for over 40% of the reasons for I-829 application denials. Therefore, when investors initially conduct due diligence on projects, the job creation capability of the project is an important investigation point. The nature of the project, the method of calculating job creation, the amount of funding, and the types of jobs counted (direct/indirect employment) will all affect the final number of jobs created. It is advisable for investors to seek the assistance of independent, third-party due diligence immigration consultants to better select projects and regional centers.
