We hope you never actually have to experience this, so retaining an experienced EB5 attorney who can analyze projects for EB5 compliance issues becomes essential. An EB5 attorney can also help you develop a plan or strategy to reach your US immigration goals. If a project “fails” for some reason, some regional centers may refund the investment funds for a future re-filing with a different regional center and/or project.
If you are unable to meet the job creation requirement in order to lift conditions, you may re-file a new I-526 based on a different project if you can afford it. There is a the possibility that you will loose some or all of the investment if the whole project goes belly up. If on the other hand, the project is still profitable but just failed to create sufficient jobs to go around and cover ALL EB-5 investors, you might eventually get your money back. That said, if you cannot afford to re-file then technically USCIS is supposed to terminate your status and place in Removal Proceedings (if you don't depart on your own accord). IF an NTA (Notice To Appear) is issued then you can plead your case to an Immigration Judge (IJ) in Immigration Court. The initial Burden Of Proof is on YOU to show that you meet the requirements for removal of conditions, otherwise it will result in an order of removal unless you apply for and qualify for Voluntary Departure--Vol. Dep. buys you time to settle affairs and maybe for the kids to finish out the school year.
Read more at: http://www.slideshare.net/BigJoe5/terminated-entrepreneurs-in-removal-proceedings-15023973 [you might need to cut and paste the URL]
The answer to your question will depend on when the project fails and under what circumstances.For instance, if there is a downturn in the revenue of the business a few months before the anniversary of the two year conditional permanent residency and hence not all the required jobs have been created. You can prove substantial compliance with the viability of the operations of the project and the rest of the required jobs will be created within a reasonable period of time. Furthermore you will also have to prove your investment funds have been committed and continue to be committed to show the required job creation until the I-829 petition is approved.