Direct EB-5 cases — investors who file Form I-526 outside a regional center — have one element that decides the petition more often than any other: ten qualifying full-time jobs for U.S. workers, created or expected to be created within a reasonable time, demonstrated through actual employment records rather than economic models. Regional center cases can rely on indirect and induced jobs through approved methodologies. Direct cases cannot.
The EB-5 Reform and Integrity Act of 2022 (RIA), signed March 15, 2022, kept the ten-job requirement intact while changing how long the investment must be sustained. For petitions filed on or after enactment, the investment must be expected to remain at risk for at least two years, measured from the date the qualifying capital is placed at risk in the new commercial enterprise — not throughout the conditional residency period as under the prior framework. That sustainment change does not lighten the job-creation burden, but it changes the timeline that an experienced EB-5 immigration lawyer is planning the case against. Most direct EB-5 cases that fail at I-829 break at one of the failure points below.
Treating Contractors and Family Members as Qualifying Jobs
A qualifying EB-5 job is full-time (35 or more hours per week), filled by a U.S. citizen, lawful permanent resident, or other immigration-authorized worker, and held under a true employer-employee relationship. Independent contractors do not count. Positions filled by the investor or their immediate family members do not count. Outsourced labor under a staffing arrangement where the workers are employees of a third party does not count.
The pitfall is mostly definitional. Direct EB-5 cases are often built in industries where 1099 work, agency staffing, or family operating models are normal — restaurants, services, small construction, e-commerce. The investor counts those people as their workforce because they are. USCIS does not. The fix is not to abandon the business model, but to size the W-2 payroll explicitly to the ten-job requirement and treat the rest as ineligible for EB-5 counting purposes.
Hiring Plans That Are Projections Without Execution Plans
A “Matter of Ho”-compliant business plan accompanies the I-526 with detailed hiring projections. By the time of the I-829 filing, the investor must show those positions actually exist or will exist within a reasonable time. The gap between “projected” and “actual” is the most common single failure point in direct cases.
The reasonable-time language is not unlimited. USCIS expects job creation to occur within the conditional residency period or shortly thereafter, supported by evidence that the investor has executed against the hiring plan in good faith. Slow hiring, by itself, is survivable when the record shows recruiting activity, offers extended, market conditions explained, and revisions to the plan made deliberately. Slow hiring with no documented execution effort is not.
Documentation Gaps That Surface at I-829
At the removal-of-conditions stage, USCIS evaluates whether the ten qualifying jobs were created. The required documentation is concrete: I-9 forms with supporting work-authorization evidence, payroll records, W-2s, quarterly 941 filings, state unemployment filings, and an organizational chart that maps real positions to real people. Many direct EB-5 enterprises operate at a level of administrative informality that produces gaps in this record.
The most common gap pattern is hour-tracking. A position that was full-time on paper but had weeks below 35 hours — because of seasonality, business slowdowns, or how the employee actually worked — does not count as a qualifying job for the periods when it was below the threshold. The fix at I-829 is documentation, not argument: written full-time offer letters, payroll showing consistent 35+ hour weeks across the relevant period, and where applicable, a written explanation tied to records that show why a temporary dip should not disqualify the position.
Hiring Timelines That Did Not Plan for the Sustainment Window
Under the RIA, the two-year sustainment period for post-RIA investors begins when the qualifying investment is placed at risk in the new commercial enterprise. That window does not automatically align with the hiring runway most direct businesses need.
The planning question is no longer “when does conditional residency end” but “when does the two-year sustainment window expire, and will the ten jobs be in place by then with documentation that holds up?” In practice, that means front-loading hiring rather than spreading it across the conditional residency period, and treating the first 18 months of operations — not the last six — as the high-leverage hiring window.
Business Models That Quietly Do Not Generate Ten Direct Jobs
Some business models fit direct EB-5 well. Others do not. Heavily automated businesses, software businesses with small headcounts, and consultancy models that scale through contractor networks often look strong commercially while producing fewer than ten direct W-2 jobs. The pitfall here is not the model itself — it is filing direct EB-5 against a model that is structurally job-light without modifying the model first.
The corrective decision happens before the I-526 is filed, not after. Either the business is restructured to support ten direct W-2 hires within the sustainment window, or the case is run through a regional center where indirect job creation is available, or the investor uses a different operating entity. Filing direct EB-5 on a job-light model and hoping that hiring will accelerate later is the failure pattern, not the strategy.
No Plan for When Conditions Change
Multi-year EB-5 cases rarely follow the original business plan exactly. Markets shift, costs change, hiring slows, products pivot. USCIS does not require strict adherence to the I-526 plan. It requires a credible explanation for the deviation and evidence that the investor remained committed in good faith to the job-creation requirement.
The strongest I-829 records under changed conditions include updated business plans signed and dated near the time of the change, board or written records of the strategic decision, evidence of revised hiring activity, and where revenue or operational metrics changed materially, supporting financial documentation. The weakest records present a final number — jobs created — without the connective tissue showing how the path got from the original plan to the present state. Adjudicators are not hostile to pivots. They are hostile to undocumented ones.
The September 30, 2026 Grandfathering Window
For investors evaluating direct EB-5 in 2026, the timing of filing matters in a way it did not before. The RIA’s grandfathering provision protects petitions filed on or before September 30, 2026: those cases continue to be adjudicated under current rules even if Congress does not extend the program past its September 30, 2027 authorization. Petitions filed after the grandfathering deadline carry program-lapse risk that earlier filings do not.
For job-creation planning specifically, the grandfathering deadline pulls forward the question of whether the business model will actually produce ten W-2 jobs within the sustainment window. Filing under deadline pressure with an unbuilt hiring plan is one of the more avoidable failure patterns in direct EB-5, and the closer the deadline gets, the more important it becomes to evaluate the case honestly before filing rather than after.
The Record Wins or Loses the Case
Direct EB-5 is unforgiving about documentation in a way that many investors underestimate at the I-526 stage and overestimate at the I-829 stage. The cases that hold up at removal of conditions are the ones where job creation was treated as a real, scheduled, documented operating priority — not as a compliance overlay on top of normal business operations. Investors who build the record from the first hire forward almost always reach I-829 with a defensible file. Investors who treat the record as something to assemble at the end almost always discover that the gaps are not closeable.
