The USCIS issued a memorandum on June 17, 2009 for its Adjudicator’s Field Manual on the subject on creation of full-time positions in EB-5 petitions.
The fifth category of employment-based immigration visa provides a method for individuals to invest a required amount of money in the United States which will create at least 10 full-time employees to apply for US permanent residency (“green card”), and the creation of the jobs should be “within the next two-years,” stated in 8 CFR 204.6.
One thing had been no so clear was when will the two-year period start. In the memo the USCIS decided that the two-year period starts six months after the adjudication of the form I-526, which is the form for the investor to file for immigration petition.
USCIS in the memo also gave more flexibility of determining job creation in the I-829 stage (for investor to petition to remove green card condition). USCIS amended the language in relevant part to “Form I-829 must contain evidence that the petitioning alien has created or can be expected to create within a reasonable time ten full-time jobs for qualifying employees.”
The key point here is “within reasonable time.” In an I-829 petition, USCIS will look at evidence submitted and determine whether the required jobs are more likely than not going to be created within a reasonable of time. This gives both the investors and reviewing officers flexibility to work on the satisfaction of the 10 full-time positions creation.
The memo did not specify the factors to decide “more likely than not” and “reasonable time,” so there is a fair amount of discretion or uncertainty involved. Nonetheless this memo should be a positive development to the EB-5 investors.