Employment Creation Setbacks Can Inhibit Removing EB5 Green Card Conditions

You may work hard to successfully complete every step of the EB5 investor visa program. However, it is possible that you will not have created sufficient jobs by the time your immigration lawyer submits Form I-829. This form starts the process of removing EBE green card conditions so you can pursue citizenship.
Even if you haven’t met your employment quota, Form I-829 may still be approved, allowing you to proceed with removing EB5 green card conditions. However, your immigration attorney must prove that you will create the required jobs within what USCIS defines as “a reasonable amount of time,” which is open to interpretation.
Along with Form I-829, you must submit evidence proving you have created or will create the required jobs. However, USCIS offers few guidelines regrading what this evidence entails. Therefore, the judgement of an experienced immigration lawyer is essential in getting the conditions removed from your EB5 green card.
When documenting jobs created indirectly by your EB-5 investment, USCIS is often understanding of delays beyond the control of the investor, the regional center, or the companies who have borrowed your invested funds. For example, after the two-year period you may not be able to prove that sufficient jobs have been created indirectly if the entity that borrowed your invested funds has yet to spend the money by hiring new employees. This may be due to trouble gaining permits to begin a job, or other factors beyond the control of the regional center in which you invest and affiliated businesses.
If your immigration lawyer can demonstrate to USCIS that both the regional center and the borrower of funds are doing everything they can to meet EB5 requirements, and will meet these requirements within “a reasonable amount of time,” USCIS may approve your non-conditional EB5 green card. Work with your immigration lawyer to help persuade USCIS that you and affiliated businesses will follow through.

Material Change Setbacks and Removing Green Card Conditions

If the jobs you create end up being significantly different from those you predicted in your comprehensive EB5 business plan, USCIS might deny your I-829 petition to have conditions removed from your EB5 green card due to a “material change.” A material change indicates a dramatic shift between what you predicted in your business plan and the actual operation of your EB-5 investment enterprise.
Even if the business in which you initially invest begins to fail, causing you to you transfer funds to a new project in order to meet EB-5 employment and investment requirements, USCIS can identify a material change and prevent you from removing green card conditions. If USCIS acknowledges a material change in your project, you will likely have to submit a new I-526 petition.
USCIS is most likely to recognize material change when you drastically change the nature of employment in your EB-5 enterprise without describing these changes in your comprehensive business plan. For example, if originally you planned for employees to work in a restaurant as waiters, and you change the business to a catering company so they are now driving and taking orders, this can constitute a material change. A material change can sometimes prevent you from removing green card conditions.
A material change is subjective, and USCIS may also recognize it if the timing for hiring and beginning projects does not align with what you stated in your business plan, as well as for many other reasons.
Fortunately, a skilled immigration lawyer is likely to be able to argue that if you met all EB-5 job creation requirements, material change is not enough to deny you a non-conditional EB5 green card. With the help of an immigration lawyer you may succeed in removing green card conditions. Your immigration attorney may also be able to amend your EB5 petition, or even file a new petition, when the material change occurs.
If the business you start or altar using your EB-5 investment undergoes significant changes not outlined in your business plan, such as material change in employment, you may be faced with the option of filing a new I-526, and beginning the EB5 process anew, or filing Form I-829 with the hopes of having the conditions removed from your EB5 green card, along with an explanation of why your EB-5 project strayed from the business plan. You may also be faced with this dilemma if you have not met EB-5 job creation predictions of your business plan.
This is a complex situation, the outcome of which hinges on your unique circumstances. An experienced immigration lawyer can explain the details of each option and possible outcome, helping you make the best decision, so you can facilitate the process of removing green card conditions.
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