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[HOT] [Q] Given USCIS' recent shift in position on "tenant-occupancy", can an office building development be the basis for an EB-5 project?


Recently in 2012, USCIS announced its "tentative" policy on "tenant-occupancy" issues. The new policy appear to make an office building development (to be rented out to various types of tenants) an extremely difficult EB-5 project. Is this the case?

The short answer is: "In theory, no; in practice, no one knows -- yet."

Theoretically, if USCIS holds firm to its recently-announced rationale, it would seem that such office building development would in practice be extremely difficult to be the basis for an EB-5 project, because practically speaking, it would be extremely difficult for an EB-5 investor/petitioner to show that the tenants' employees are "new" jobs which do not involve merely relocating from another location to the building. See http://eb-5center.com/node/1044 for a detailed explanation of USCIS' recent explanation on how it views the tenant-occupancy issues. The fact of the matter is most of the tenants' employees in this type of office building project would be relocating employees. Moreover, it is unlikely that there would be some business or financial relationship between the developer and the tenant as indicated by USCIS. However, we have not yet heard whether USCIS is intent on denying I-526s or I-924s for these types of projects. We will have to wait and see where USCIS wants to take this issue, as there are a slew of pending RFEs issued by USCIS involving this issue.