EB-5 Job Creation at the Form I-829 Stage

The I-829 should update the projections used in the original investor and project filings.

At the Form I-829 stage, the job creation record should move beyond the projections used to obtain investor classification and document what actually occurred. INA section 216A requires the petition to establish that the required employment was created or that the investor is actively in the process of creating it within the statutory period. The filing should compare original projections with current project facts, identify any material variances, and support the explanation with contemporaneous records. A concise reconciliation of investor count, job allocation, actual activity, and remaining projected employment can help USCIS evaluate the requirement without reconstructing the entire project history.

Forms I-9, payroll, tax filings, employee records, and hours can support direct job creation.

For a standalone direct employment case, the I-829 record should establish qualifying full time positions with ordinary employer evidence. Payroll reports, Forms I-9, wage and tax records, employee rosters, job descriptions, hours, hire dates, and termination or replacement records can show whether qualifying positions existed. The analysis should focus on the jobs that count under the EB-5 rules rather than raw headcount. Owners, family members, contractors, part time positions, or workers who do not satisfy the applicable definition may need to be excluded. If personnel changed, the filing should explain whether the qualifying full time positions themselves continued.

Construction expenditures, revenue, operational expenditures, and other inputs should match the approved methodology and supporting project records.

A regional center investor may rely on the job creation methodology associated with the project, but the I-829 should support the actual qualifying inputs to which that methodology is applied. Depending on the approved model, those inputs may include construction expenditures, operating expenditures, revenues, direct employment, or other project activity. The economic update should reconcile the model with accounting records, draw statements, invoices, project completion evidence, and any changed assumptions. If expenditures or timing differ materially from the original Form I-956F record, the filing should explain the effect on the job calculation rather than simply repeat the original projected total.

INA §216A and implementing rules permit consideration of jobs expected to be created within a reasonable time where the applicable requirements are met.

Current INA section 216A provides that an investor may qualify when the required employment has been created or when the investor is actively in the process of creating it and the employment will be created before the third anniversary of lawful admission for permanent residence, with the capital remaining invested during that time. The record should identify the jobs not yet created, explain why they remain outstanding, and provide evidence of when they will materialize. Construction schedules, signed contracts, financing, hiring plans, project completion evidence, or other objective records can support the expected timing. A bare prediction is weaker than a documented path to completion.

The number of EB-5 investors, total qualifying jobs, allocation methodology, and project documents should be evaluated together.

A project wide job shortfall should be analyzed numerically before the I-829 is filed. The review should identify the total qualifying jobs supported by the current evidence, the number of EB-5 investors relying on the project, the allocation methodology, and any job cushion remaining after adjustments to project inputs. If the project no longer supports every investor at the originally projected level, counsel should determine how the governing documents and project records allocate the available jobs and whether additional qualifying activity is expected within the permitted period. The explanation should avoid double counting the same job or expenditure across multiple investors.

• Payroll
• Forms I-9
• Tax filings
• Construction expenditures
• Economic impact report
• Invoices
• Draw records
• Operating financials

The I-829 job package should be built from records generated during actual project operation or development. In a direct case, those may include payroll, Forms I-9, Forms W-2, tax filings, schedules, and employee records. In a regional center case, they may include construction ledgers, invoices, draw reports, bank records, operating statements, revenue records, updated economic analysis, and project completion documents. The filing should connect each evidentiary category to the job methodology being used. Organizing the exhibits by job input or employment category makes it easier to demonstrate what was achieved and what, if anything, remains to be completed.