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Filing I-829s During a Coronavirus Economic Downturn
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</h3><h4><i>by <a href=”http://discuss.ilw.com/articles/articles/393376-article-the-impact-of-covid-19-while-universities-shut-their-doors-indian-embassy-asks-international-students-to-stay-put-by-kunal-patel#bio#bio”>
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Matt Galati
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For the past two weeks, I’ve been flooded with queries from investors who
have questions about the viability of their future I-829 condition removal
petitions given what appears to be an
<a
href=”https://www.politico.com/news/2020/03/23/great-depression-coronavirus-induced-calamity-145304″
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assumed significant economic downturn
</a>
due to the cessation of most facets of modern life as countries seek to
“flatten the curve” of ongoing COVID-19 infections.
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For the purposes of this article, let’s assume that a weak economy has no
effect on the I-829 requirements that a New Commercial Enterprise be
created and in good standing. We can also assume (perhaps more than we want
to) that the EB-5 investments remain at risk. Thus, approval is a matter of
job creation.
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Let’s first look at the I-829 regulatory requirements relating to job
creation. At the time of I-829 adjudication, USCIS must decide whether the
investor “created or can be expected to create within a reasonable period
of time ten full-time jobs to qualifying employees.” 8 CFR 216.6 (C)(iv).
Note that like the I-526, the I-829 can be approved from a prospective
standpoint – the jobs need not <em>necessarily</em> be in place at the time
of filing. We’d sure hope that they were, and for the better part of the
past decade, most projects have been able to create the jobs on time.
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But what if the jobs aren’t in place yet? The <u>USCIS Policy Manual</u>
interprets the prospective nature of the job creation requirement further
as follows:
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Within a Reasonable Time Standard
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A petitioner may demonstrate that jobs will be created within a
reasonable period of time after adjudication of the Form I-829
petition. This permits a degree of flexibility to account for the
realities and unpredictability of starting a business venture, but it
is not an open-ended allowance. The business plan submitted with the
Form I-526 immigrant petition must establish a likelihood of job
creation within the next 2 years, demonstrating an expectation that
EB-5 projects will generally create jobs within such a timeframe.
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USCIS may determine, based upon a totality of the circumstances, that a
lengthier timeframe is reasonable. USCIS has latitude under the law to
request additional evidence concerning those circumstances. Because 2
years is the expected baseline period in which job creation will take
place, jobs that will be created within a year of the 2-year
anniversary of the immigrant investor’s admission as a conditional
permanent resident or adjustment to conditional permanent resident may
generally be considered to be created within a reasonable period of
time.
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Jobs projected to be created more than 3 years after the immigrant
investor’s admission in, or adjustment to, conditional permanent
resident status usually will not be considered to be created within a
reasonable time unless extreme circumstances10 are presented.
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Not all of the goals of capital investment and job creation need to be
fully realized before the conditions on the immigrant investor’s status
have been removed. The investor must establish that it is more likely
than not that the investor is in substantial compliance with the
capital requirements and that the jobs will be created within a
reasonable time.
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See
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https://www.uscis.gov/policy-manual/…rt-g-chapter-5
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(emphasis added)
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<p>
Thus, USCIS interpretive guidance allows the I-829 petitioner to leverage,
by right, jobs that will be created within a year of the expiration of the
initial 2-year conditional Green Card. An updated business plan (or a
detailed narrative) and economic analysis could be incredibly helpful in
this regard. By proving that its more likely than not that there are 10
jobs per investor within a year of the expiration of conditional permanent
residence, the I-829 should be approved.
</p>
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That said, although the regulation allows for approval where the project
“can be expected to create” the jobs, the
<a
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illegally lengthy
</a>
I-829 processing times may invite an RFE a year (or more) after filing to
check on the actual job creation.
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<p>
That’s not what the controlling regulation mandates. They only require the
expectation of job creation as stated above. Might there exist a way to
facially attack the <u>Policy Manual</u> as deviating from the<em>prospective</em> nature of the regulations against the <em>retrospective</em> nature of an RFE against a long-pending case? The
adjudicator should decide the case as filed, and at most 90 days
thereafter. Is it proper for them to consider facts occurring after filing?
I would argue no.
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Setting aside that hypothetical, one must also note that the <u>Policy Manual</u> allows for jobs to be created after three years of
conditional residency to be credited to investors where there is the
presentation of “extreme circumstances.” The footnote to that passage
(fn10) gives the example of a <em>force majeure </em>as being such an
extreme circumstance.
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We should count our blessings that lawyers need to explain the meaning of <em>force majeure</em>. I and others fear that this phrase will become all
too commonplace after the fallout of COVID-19 on
<a
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modern society and contract law
</a>
. Indeed, <em>force majeure</em> may become commonplace in elementary
school vocabulary curricula by the time we can move past the economic
fallout of the 2020 coronavirus outbreak. A great many contracts
<a
href=”https://www.wsgr.com/en/insights/covid-19-and-force-majeure-clauses.html”
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could be invalidated
</a>
through force majeure clauses and inherent principles of contract
interpretation.
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Let’s break it down. <u>Black’s Law Dictionary</u> defines <em>force majeure</em> as “An event or effect that can neither be
anticipated or controlled. The term includes both acts of nature (e.g.
floods and hurricanes) and acts of people (e.g. riots, strikes, and wars).”
We expect a full body of caselaw over the coming years, perhaps decade, on
whether the coronavirus was indeed a <em>force majeure</em>.
</p>
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So what does this cataclysmic event mean for investors? Certainly many will
have invested in projects that have not performed to expectations at the
time of the I-829 filing. The Coronavirus outbreak does not, in and of
itself, excuse the EB-5 job creation requirements. However, an investor
whose project has not created the requisite jobs at the time of condition
removal would be well-advised to present evidence of the <em>force majeure </em>event that has delayed the construction of a project
(such information would typically be available from a project’s developers
which would have invoked a <em>force majeure </em>clause in their
agreements), as well as documentation and a plan for ongoing job creation
in the coming year thereafter. Where necessary, evidence of further job
creation beyond three years post-conditional residency may be appropriate
given the effects of the coronavirus on virtually every aspect of modern
life and the global economy.
</p>
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<p>
Again, the I-829 filing need not necessarily prove the requisite jobs were
created. The investor must only prove that he or she “can be expected to
create” the jobs “within a reasonable period of time.” The effects of the
coronavirus will probably extend the window of that reasonable period of
time, which determination is fact specific as different projects may be
impacted by the current events in different ways. But, and I cannot stress
this enough, the approval of the I-829 should accordingly turn on the
“expectation” of job creation as per the controlling regulations.
</p>
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<p>
We have been through this before. Many I-829s filed during the 2008 Great
Recession and its ensuing economic downturn were approved. Investors need
effective advocacy from immigration counsel and ongoing loyalty from their
project issuers to ensure adequate job creation – whenever that may be.
</p>
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<p>
For more information on the I-829 Petition by Investor to Remove Conditions
on Permanent Resident Status or general EB-5 information,
<a href=”mailto:info@galati.law” target=”_top” rel=”noopener noreferrer”>
contact us
</a>
today.
</p>
<p>This post originally appeared on <a href=”https://www.galati.law/post/filing-i-829s-during-a-coronavirus-economic-downturn” target=”_blank”>The Galati Law Firm</a>. Reprinted with permission.</p>
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About The Author<br/>
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<p>
<b>Matthew T. Galati </b>is the Principal of The Galati Law Firm. Representing immigrants to the U.S. is personal to Matt as he is the grandchild of and spouse of immigrants.
With his significant experience in immigration law, Matt has handled matters relating to nearly every visa type. Over the past few years, Matt has focused the majority of his practice on EB-5 and E-2 related matters, resulting in the preparation of hundreds of investor petitions, as well as regularly advising U.S. companies utilizing the EB-5 program. In addition, Matt has creatively utilized other visa types to obtain immigration benefits for his entrepreneurial clientele. His client base of the “best and brightest” consist of scientists, musicians, athletes, medical professionals, businessmen and women, and many more.
Prospective clients regularly call upon Matt when immigration processes do not go as expected. His experience as a litigator predate his law school graduation. Matt’s previous representations have included representing clients before federal district court, in adversarial agency practice, appellate proceedings and EOIR. Most notably, Matt served as counsel pro hac vice in the seminal EB-4 Religious Minister case Shalom Pentecostal Church v. Beers, No. 11-4491 (D.N.J. Sept. 16, 2013) which resulted in the elimination of two USCIS regulations that the court held to be illegally published. Matt has also filed several mandamus / unreasonable delay actions which have successfully “broken the backlog” for aggrieved visa applicants particularly arising from EB-5 delays.
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