EB-5 Job Creation

In February 2012, the USCIS began issuing Requests For Evidence (RFEs) questioning whether a project’s job creation may include new jobs created by a project’s tenant, such as a new business in an office building or retail mall. Generally speaking, the USCIS’s new position is that such jobs cannot be counted except in exceptional circumstances, such as where there are no other spaces available for the new business to start up or expand. This is called USCIS’s “tenant occupancy” policy. Since then, USCIS has issued some project denials, but on other technical grounds, not tenant occupancy. One of these project denials has been reopened on order by a judge. In another denial based on technical grounds the USCIS said: USCIS is currently studying whether this model is economically sound or whether it provides a reasoned basis for determining that a petitioner is able to meet the job requirements under the statute, regulations, and precedent decisions. Deferral of this issue at this time does not preclude USCIS from examining the use of such methodology in subsequent decisions concerning this NCE or any particular alien's investment. This is curious language and it seems the USCIS is unsure of its policy on the new tenant job creation counting toward the 10 jobs each investor must create. USCIS has scheduled “A Conversation with Director Mayorkas” on Dec. 3, and we believe Mr. Mayorkas will discuss the tenant occupancy issue in that meeting. Martin

EB-5 Information

In October, in Washington, D.C., I attended the IIUSA (EB-5 Regional Center Trade Association) meeting and the USCIS EB-5 Stakeholder’s meeting. China Quota The biggest news came from the Department of State (DOS). It allocates visa numbers to the American Consuls and USCIS offices in the U.S. for each EB-5 investor and each dependent immigrating. There have been many EB-5 cases approved in the past year and the investors and their families are immigrating to the U.S. and using visa numbers. The DOS predicts it will start rationing the 10,000 EB-5 visa numbers most likely in fiscal year 2014 but possibly as soon as this winter for Chinese investors. This means that DOS will establish a cutoff date and allocate visa numbers by priority date (date the I-526 was filed) but only for Chinese investors. The DOS Visa Bulletin issued every month will contain the cutoff date which usually (not always) advances each month until about August when the numbers are exhausted for the fiscal year and closes to open again October 1, the beginning of the new fiscal year. This also means a few things: * The EB-5 visa category is not closing. The backlog only applies to China and the China quota will not close. * I spoke to Charles Oppenheim of the DOS who said he made this announcement to give people time to plan and so any retrogression of the China quota would not be a surprise. He said his estimation of visa usage is still uncertain. If demand for visas is strong, possibly in January he would set a cutoff date of November or December 2011. This means Chinese investors with I-526s filed in November or December 2011 or before can continue to immigrate without any delay (people with more recent priority dates may have to wait for their date to show up on the visa list). He emphasized his estimate is preliminary but thought, based on current demand, that in FY2014 there would be a backlog/cutoff for China EB-5 visas. * Chinese investors’ immigration will take longer. How much, we will have to see. At this point it is months not years. * We all thought that jobs had to be created within 2 years of the investor’s immigration. On June 17, 2009, the USCIS issued a Neufeld Memo creating, out of whole cloth, a policy that the jobs should be created within 2½ years of the approval of an I-526. So, if immigration takes longer due to a shortage of visa numbers, the jobs should still have to be created within 2½ years of the I-526 approval which may be substantially before the I-829 is filed. The USCIS can approve the I-829 if the jobs have not been created but will be created “within a reasonable time” (i.e., beyond the 2½ years of the I-526 approval. Other News From the October Washington, D.C. Stakeholder’s Meeting * There have been some changes in the USCIS personnel that supervise the EB-5 unit. We will see if it runs better under their command. * The meeting was well run by a USCIS attorney who discussed some of our questions and seemed to listen. At least we were not stonewalled as was the case at the Laguna Niguel meeting in the spring. * USCIS adjudications of new Regional Centers (I-924 forms) and amendments have slowed, but some have recently been approved. * USCIS is revoking some dormant Regional Centers. * I asked a detailed question regarding job creation and the methods for measuring indirect jobs. I have not received a reply, but will follow up with the USCIS. Martin