TOPIC IN BRIEF
How to best prepare employee rosters and final construction draw summaries to
increase the likelihood of I-829 approvals.
By Adrian Toh
G
iven the ambiguity regarding which job creation
documentation is acceptable by USCIS at the I-829
stage, let’s look at practical documentation strategies that
often result in I-829 approvals. Two major areas of job
creation are direct job creation through operations as well
as job creation through construction and furniture, fixtures
and equipment (FF&E) expenditures.
DIRECT JOB CREATION
Regarding direct job creation, three main documents are
required: an employee roster, one payroll period, and either
E-Verify or I-9 documentation. Regarding the employee roster,
the Job Creating Entity (JCE) prepares a list of employees that
details each employee’s name, full-time or
part-time status, and initial date of hire.
If two employees are combining for one
full-time position, their position must be
the same and ideally their working hours
will not overlap.
For direct job creation, submitting these three documents can
lead to approvals without any further requests for evidence.
CONSTRUCTION AND FF&E
EXPENDITURES
Regarding construction expenditures, provide the final
construction draw summary or final application for payment
certificate from the contractor or third-party construction
management company that shows the funds were 100 percent
disbursed and details the total costs incurred from construction.
This summary bypasses the need for a complete set of invoices
or wire transfers.
"When in doubt or
when evidence is
unavailable, rely
on third-party
evaluations..."
For the payroll period documentation,
usually one bimonthly payroll will suffice,
either issued by the JCE or by a third-
party payroll firm, and the JCE must be
the operating entity listed. For the bimonthly payroll, the total
hours for each employee should be a minimum of 70 hours, or an
average of 35 hours per week.
If employees for that pay period are under the required minimum,
include a declaration from the JCE, a paid time off form, or other
evidence showing that the employee did not meet the minimum
hourly requirement for that particular pay period due to vacation,
illness, or other excused time off.
The latest 2016 policy memorandum suggests that the age of
the payroll doesn’t matter, provided that when the jobs were
created, they were intended to be full-time qualifying positions.
Finally, to document eligibility to work in the United States,
include either E-Verify confirmations or I-9s with attached copies
of Social Security or identification cards. However, if some
Social Security or identification cards are missing, as long as the
information is listed in the I-9, it shouldn’t be an issue.
Regarding FF&E expenditures, because
there may be multiple vendors
involved, have the JCE prepare an Excel
spreadsheet listing all the vendors, the
description of the products purchased,
and the final sale price.
To support the spreadsheet, include as
a separate exhibit a few sample invoices
to substantiate the cost summary. The
complete set of invoices is usually not
required, and USCIS has explicitly stated
in the past that substantial compliance is
usually enough. However, the more complete the documentation,
the better the chances of approval.
UNAVAILABLE DOCUMENTS
For some projects, due to the length of time between the
project’s completion and the filing of the I-829 petition, some
evidentiary documentation may no longer be available. One
project which received I-829 approval used a contractor that
was no longer in business after construction was completed
years ago.
Therefore, at the time of filing the I-829 petition, evidence of
the construction costs could not be obtained, even though
they were required to prove job creation. In that instance, you
need to hire a third-party construction firm to review the initial
property appraisal report, the executed construction contact
and perform an on-site inspection of the property.
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