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[HOT] Can construction jobs be counted as direct jobs in a RC based EB-5 project?
USCIS has caused a great deal of confusion surrounding construction jobs, mainly because USCIS is not sticking with its own definition of direct vs indirect jobs. In practice, it is almost impossible for any construction jobs to be deemed as "direct" jobs per EB-5 law. Think about it: Under the EB-5 law, "direct" jobs are only those jobs directly employed by the NCE or JCE, but most, if not all, construction jobs are hired by general contractors or sub-contractors. This means all construction jobs are indirect jobs under the EB-5 law. Therefore, under the EB-5 law, it's logically flawed to count any construction jobs as "direct" jobs. However, in our opinion, USCIS seems to be very confused on this issue.
Anyway, we would be very, very cautious about any EB-5 projects that need to count "direct" construction jobs to meet the requisite job numbers, mainly because under the EB-5 law, there is no such thing as "direct" construction jobs; maybe economists will deem certain construction jobs as "direct", but that's logically flawed under the EB-5 law definitions of "direct" and "indirect" jobs.
USCIS still needs to clarify issues concerning EB-5 projects involving construction jobs, tenant-occupancy jobs or hotel related jobs. It's amazing how USCIS fails to provide clear enough guidance on these issues.
Update: As of July 16, 2013, an experienced EB-5 economist has stated that as long as the underlying construction activities last longer than 2 years (as supported by evidence), he has observed USCIS allow the counting of "direct" construction jobs.