Foreign nationals who acquired conditional permanent resident status based upon a qualifying investment in a new commercial enterprise are now routinely being required by the U.S. Citizenship and Immigration Services (USCIS) to submit Forms I-9 for inspection to demonstrate that they employ(ed) authorized workers in order to remove the conditions of their residency in the United States. The USCIS has also recently refused to credit indirect employment in certain situations where a multiplier was based upon direct jobs creation if the direct employment involved unauthorized workers.

As a result, regulatory compliance and unauthorized workers have become a significant risk for foreign investors. Recently, numerous investors have had their I-829 petitions to Remove Conditions denied and now face removal proceedings despite the fact that their investments met all eligibility requirements for the capital investment, and for job creation, except that USCIS determined from I-9 reviews that some jobs were held by unauthorized workers. What is especially troubling about this situation is that new commercial enterprises were attempting to comply with the I-9 employment eligibility requirements.

BMS recommends that investors establishing new commercial enterprises build an immigration compliance program that provides assurance and confidence that unexpected issues will not be encountered when they attempt to remove the conditions of residence.

Waiting until the I-829 petitions are filed is too late to implement an effective employment eligibility verification program. The risks to investors and to future recruitment of investors to new investment plans are too high. The time to ensure that each business has an effective program is before employees are hired.

Although the success of investments may be impacted by a variety of economic influences outside of the control of investors and managing partners, this is not the case with compliance with the jobs for Americans requirements of Section 203 of the INA.