Under what conditions could the I-829 petition of an EB-5 investor be turned down?

Failure to create the requisite number of jobs and failure to sustain the investment by paying back the capital early.

The main purpose of I-829 is to prove job creation.

A host of reasons can account for denial of I-829 which may include failure to meet the job requirement. The incompletion of a project is also a major threat, particularly if the incompletion is failure to comply with the business plan filed with the underlying I-526. Another reason could be fraud by the principal players at the regional center level, which threatens program compliance and may trigger an investigation, cause delays or even a denial, just to name a few. There is no definitive factor. Thus, it is advisable that attention should be paid to all relevant factors that can enhance I-829 approval.

There are three central legal requirements for the I-829 petition. First, the foreign national investor must have invested the required amount of capital. Second, the foreign national investor must have kept his or her entire investment in the EB-5 project throughout the two-year period of conditional permanent residency. Third, the required number of jobs must have been created.

A petition to remove conditions on Form I-829 can be denied for a variety of reasons. Remember, at the time your EB-5 investor petition on Form I-526 is filed, it is essentially a promise to make the investment, to create the jobs and for the enterprise to be located in a targeted employment area (TEA). It is your I-829 petition that establishes that you complied with your promises and, in fact, all the funds were invested in the project and the jobs were created in an enterprise located in a TEA (if you took advantage of the lower investment amount).

If the immigrant investor fails to show that the requisite jobs have been created/maintained or if the business is no longer operational, etc., those would be some of the reasons for an I-829 petition to be denied.

8 CFR Sec. 216.6 cites the criteria for the I-829. Subsections III and IV are the most important at this stage since the other criteria is met with the I-526 petition. If you cannot prove the capital investment is still sustained or that the job requirements have not been met, that could adversely affect your ability to be successful with your I-829 petition. Depending on the circumstances, you may need an economist to help calculate the 10 full-time job requirements, if that is not clear with your current business structure. If you have invested in a regional center, the job requirement portion may be easier to show.

The petition for removal of conditions must be accompanied by the following evidence. First, that evidence that a commercial enterprise was established by the alien. Such evidence may include, but is not limited to, federal income tax returns. Second is evidence that the alien invested or was actively in the process of investing the requisite capital. Such evidence may include, but is not limited to, an audited financial statement or other probative evidence. Third is evidence that the alien sustained the actions described in paragraph (a)(4)(i) and (a)(4)(ii) of this section throughout the period of the alien&#39s residence in the United States. The alien will be considered to have sustained the actions required for removal of conditions if he or she has, in good faith, substantially met the capital investment requirement of the statute and continuously maintained his or her capital investment over the two years of conditional residence. Such evidence may include, but is not limited to, bank statements, invoices, receipts, contracts, business licenses, federal or state income tax returns, and federal or state quarterly tax statements. Fourth is evidence that the alien created, or can be expected to create within a reasonable time, 10 full-time jobs for qualifying employees. In the case of a "troubled business" as defined in 8 CFR 204.6(j)(4)(ii), the alien entrepreneur must submit evidence that the commercial enterprise maintained the number of existing employees at no less than the pre-investment level for the period following his or her admission as a conditional permanent resident. Such evidence may include payroll records, relevant tax documents and I-9 forms.

Money has been invested in the project and the required 10 jobs per investor have been created; otherwise it will be turned down.

There are two elements to prove at the I-829. First is the full investment amount still invested and at-risk. Second is having the business create the requisite 10-plus full-time, permanent jobs as promised or projected in I-526 petition filing. If either of the above cannot be proven, then I-829 will be denied. Your immigration lawyer who helped you with EB-5 case should be able to explain this to you.