Preparing for I-829: Proving Job Creation and Sustained Investment

The I-829 petition, Application to Remove Conditions on Permanent Resident Status, is a critical juncture for EB-5 investors. Successfully navigating this stage hinges on definitively proving two core requirements: the creation of the requisite number of qualifying jobs and the sustained investment of the required capital throughout the conditional period. Meticulous preparation and comprehensive documentation are paramount for approval.

I. Demonstrating Job Creation Requirements

USCIS requires proof that the required number of full-time positions for U.S. workers have been created and maintained for at least two years of the conditional period. Documentation must be robust and clearly traceable.

A. Defining Qualifying Employment

Not all employees count toward the total. It is essential to adhere strictly to USCIS definitions:

• Full-Time Position: An employee must work an average of at least 35 hours per week, or as defined by the employer's bona fide practice, provided it meets industry standards.
• U.S. Worker: Must be a citizen, lawful permanent resident, or other legally authorized worker.
• Direct vs. Indirect Jobs: For investments made directly into a new commercial enterprise (NCE), only direct jobs count. For investments made through a Regional Center, both direct and indirect jobs (calculated using approved economic models) are permissible.

B. Essential Job Creation Documentation

The following records are indispensable for proving compliance:

1. Payroll Records: Detailed payroll summaries, including gross wages and hours worked for each qualifying employee.
2. W-2 Forms and Tax Filings: Copies of filed W-2s submitted to the IRS.
3. Employee Documentation: Affidavits or HR records confirming the employment status and start dates of each worker.
4. Job Descriptions: Evidence that the positions created align with the business plan submitted with the I-526 petition.

II. Proving Sustained Capital Investment

The invested capital must remain "fully committed" to the project for the entire two-year conditional period. This means the funds must be actively deployed in the business operations or assets as outlined in the approved business plan.

A. The Definition of "Sustained"

Sustained investment means the capital has been:

• Deployed: Used to purchase necessary equipment, real estate, or working capital.
• At Risk: The funds must not have been returned to the investor or used for non-business purposes (e.g., personal loans).
• Maintained: If the NCE sells an asset, the proceeds must generally be reinvested promptly into qualifying expenditures.

B. Financial Evidence Checklist

Financial documentation must demonstrate the flow and commitment of the investment capital:

1. Bank Statements: Showing the initial capital infusion and subsequent expenditures.
2. Invoices and Receipts: Documentation proving the purchase of qualifying assets or payment for qualifying services.
3. Loan Documents: If debt financing was used to meet the investment requirement, evidence that the NCE is servicing that debt.
4. Audited Financial Statements: Annual statements prepared by a certified public accountant (CPA) showing assets and liabilities.

For instance, if the investment involved purchasing manufacturing equipment, the invoice, proof of payment, and documentation showing the equipment is operational are all required. A simple ledger entry is insufficient; source documentation is key.

III. Addressing Potential Issues

Proactive identification and resolution of potential compliance gaps can save significant time during adjudication.

If the required number of jobs was not met exactly at the two-year mark, but the NCE can demonstrate that the jobs will be created shortly thereafter based on binding contracts or construction milestones, a supplementary explanation should be provided.

Common pitfalls include:

• Using investor funds for management fees before the capital is fully deployed.
• Counting employees who only worked part-time or contractors who do not meet the statutory definition.
• Failing to document the reinvestment of funds from asset sales.

Conclusion

The I-829 petition requires a cohesive narrative supported by undeniable documentary evidence proving both job creation and sustained capital commitment. Thorough preparation, often guided by experienced immigration counsel and CPAs familiar with EB-5 regulations, ensures that the investor successfully transitions from conditional to permanent residency.