[Q] When must the new positions be created?
Legally speaking, the regs say the requisite employment must be created within the two-year period immediately following the investor acquiring conditional permanent resident (CPR) status. However, for practical purposes (and in our opinion, the only logical interpretation) is that the requisite jobs must be created by the time I-829 is reviewed, or if USCIS allows in its discretion, within "a reasonable period of time therefrom". In our opinion, the two years definitely is not from the submission or approval of I-526 petition, because that would lead to a totally incongruous results, because CPR acquisition date definitely does not equal the I-526 submission or approval date. Some sort of "reasonable" interpretation must be applied to any statutes and regulations. This is not to say that some portions of EB-5 statutes and regulations are unclear; they are unclear, and read literally, leads to an unworkable results.
The problem might have been created by sometimes inconsistent interpretations of the statutes and regulations utilized by USCIS. An argument can be made that USCIS appears to ignore the literal languages of the statutes and regulations, while at other times, USCIS appears to apply the literal language. This is okay, as long as there is an over-arching philosophy or objective behind where the EB-5 Program should be headed, but often, the principals of USCIS governing EB-5 Program changes. It is sincerely hoped that more consistent, reasonable and practical interpretations of relevant statutes and regulations be applied and implemented by USCIS examiners. After all, it's the examiners who decide each individual I-526 and I-829 cases, not the policy-makers or Congressmen.