An EB-5 funded business succeeds when it does two things at once. It has to trade well enough to survive, and it has to produce the paper record that carries an I-829: payroll showing ten full time jobs for every investor, plus accounting that traces the $800,000 into the new commercial enterprise and shows the money stayed at risk. Founders rarely lose their conditions on the business idea. They lose them on records.
So build the evidence file from the first hire onward. Month 22 is too late to reconstruct it.
What the adjudicator checks at I-829
Two questions decide the petition. Did the required capital go into the enterprise and stay invested? Do ten full time jobs per investor exist in documents a stranger can verify without calling you? 8 CFR 216.6, the regulation on removing conditions lists what the petition has to contain, and the Form I-829 instructions restate the same demands in plainer language.
Filing timing is fixed. The petition goes in during the 90 days before the second anniversary of the date your conditional residence began, and approval removes the conditions as of that second anniversary. Your spouse and the children who received conditional residence alongside you are included on your petition. They do not file separate ones.
Ten full time jobs, counted the way the regulation counts them
Full time means at least 35 hours per week. 8 CFR 204.6(e) is blunt about the arithmetic: a combination of part time positions does not make a full time position, even when the hours add up to 40. Job sharing is treated differently. Two people formally splitting one full time role count as one qualifying job.
Who fills the seat matters as much as the hours do. A qualifying employee is a US citizen, a lawful permanent resident or another immigrant authorized to work here. Nonimmigrants are excluded, so an H-1B engineer or a student working on OPT is a real member of your team and a zero on the EB-5 tally. You do not count either. Neither does your spouse or your children.
Standalone investors count only people on the enterprise's own payroll. Economic models that let regional center projects claim indirect and induced jobs are unavailable outside that program, and the gap explains why most passive investors choose a sponsor rather than build something themselves. Our comparison of Regional Center vs Direct EB-5 sets out the trade without the sales gloss.
One rule gets misread constantly. A business established on or before 29 November 1990 can still serve as the new commercial enterprise if it is restructured or expanded enough to lift net worth or headcount by at least 40 percent, and a troubled business can count ten preserved jobs instead of ten created ones. Neither route lowers the number ten.
Records to keep from the first hire
- Quarterly payroll returns. Form 941 for every quarter of the conditional period, reconciled against your state unemployment insurance wage reports.
- W-2s and the annual W-3 transmittal for each year, because these are third party documents an officer already trusts.
- Form I-9 for every hire. Work authorization is what turns an employee into a qualifying employee.
- A payroll register showing hours. An annual salary figure does not prove 35 hours a week. A timekeeping record does.
- Bank statements and a clean general ledger tracing capital from the escrow release into the operating account and out into wages and equipment.
Officers read these cold. A spreadsheet you assembled in month 23 carries far less weight than a quarterly return you filed with the IRS in real time, under penalty of perjury, at a point when you had no idea which quarter an adjudicator would eventually care about.
Keep the capital at risk and keep it working
At risk means exposed to loss with a genuine prospect of gain. Any guaranteed buyback or promised return of principal on a fixed date will sink the petition, and a redemption right buried in the operating agreement does the same damage. Money parked in a bank account is a quieter version of the same problem, because USCIS expects capital to be deployed into the job creating activity your plan described.
Do not repay yourself.
The 2022 statute requires the investment to be sustained for at least two years, and USCIS has confirmed that clock starts when the capital is made available to the enterprise rather than when you are admitted as a conditional resident. Sponsors frequently hold funds longer anyway, since the jobs still have to exist when the I-829 is adjudicated. Borrowed money brings its own file: keep the loan agreement, the collateral documents and evidence of where the lender's funds came from. Source of funds scrutiny does not stop at the wire, and the structures that work are covered in EB-5 Loans Explained.
How long does direct EB-5 take?
Two clocks run, and people confuse them. First comes USCIS adjudication of Form I-526, the petition for a standalone investment. Posted times shift month to month, so read the current figure on the USCIS processing times tool instead of trusting a number quoted in an article. Second comes the visa queue, set by country of birth, and for applicants born in mainland China or India that second wait is usually the longer one by a wide margin.
A standalone investment located in a rural area can claim the 20 percent rural set-aside. Reservations of 10 percent for high unemployment areas and 2 percent for infrastructure sit alongside it.
Three dates belong in your planning. Regional center authorization runs through 30 September 2027. Petitions filed on or before 30 September 2026 are protected by 8 U.S.C. 1153(b)(5)(S) even if the program lapses after that. And the minimum, currently $800,000 in a targeted employment area or $1,050,000 outside one, faces its first inflation adjustment on 1 January 2027.
Where owner operators get into trouble
- Contractors instead of employees. A 1099 worker is not a qualifying employee. Restaurants and construction firms that staff through agencies often reach the I-829 with a healthy company and an unusable payroll.
- Drifting from the plan. Pivoting out of the franchise you described into an unrelated line of business invites a request for evidence you will struggle to answer.
- Hiring late. Ten jobs appearing in month 22 is legally possible and evidentially thin.
- Counting family. Your cousin on payroll is fine. Your spouse and children are never countable, whatever work they actually do.
Management is a requirement too, though a light one. You have to be engaged in policy formation or in day to day management. A limited partner holding the rights granted under the Uniform Limited Partnership Act satisfies it. A sole owner running an operating company satisfies it without thinking. Silence in a company you supposedly manage does not.
Who you want in the room
An immigration lawyer runs the petition. A CPA who has produced EB-5 job evidence before will save you a year of reconstruction, and an employment lawyer earns the fee the first time you hire across state lines. Budget for all of this at the outset; professional costs are itemized in The Real Cost of EB-5, and they are not trivial. Do not economize here. Once conditions come off, the company is simply yours to run or sell, and the wider picture is in Employment and Business Opportunities After EB-5.