[HOT] Construction jobs -- what is wrong with this issue?


* Most of the issues related to the construction jobs (direct, indirect and induced) have been answered by the recent Neufeld guidance memo dated June 17, 2009.

The USCIS has been for some time de facto allowing indirect and induced jobs created from construction activities to be counted in economic studies that is an underpinning of a regional center EB-5 program. Now, there is a rumor that the USCIS will allow even construction jobs created as direct jobs.

My problem is not with whether this is good or bad idea, or even with obvious practical obstacles presented in determining what exactly constitutes a single construction job. My problem with this issue is that there was no actual, formal announcement. No one outside few Regional Centers and some immigration attorneys focusing on EB-5 cases know of this rule, because nothing was published by USCIS on this issue, except for few oral statements made during some meetings. This is not how EB-5 rules or policy should be shaped. There should at least be a formal memo or guidance issued by USCIS on these issues clearly setting forth any changes, justifications and how related practical issues will be dealt with. To be fair to USCIS, it has stated, close to one year ago, that some guidances were in the works, but I would not be surprised that the memos are still in the works after another year.

Actually, many aspects of EB-5 law can be made more practical by re-writing EB-5 regulations rather than Congress amending EB-5 statute, because EB-5 statute is very broad and does not need to be amended to come up with a more practical platform, unless one wants to completely delete the job-creation requirement. Statutory amendment(s) would be needed to accomplish the deletion of the job-creation requirement. And I personally do not buy the argument that the EB-5 statutes do not require job-creation for regional center eb-5 projects either.

In addition, I see all kinds of issues with how one would practically be able to evidence a single construction position. The problems with I-829 conditions removal petition arise from the practical difficulties in evidencing that the job-creation requirements have been met. Often, the jobs are really created, but there are many practical problems that arise in providing documentary evidences for these new positions created. Sometimes, it's very, very difficult. Let me just offer one example. Let's say a new EB-5 project by Microsoft created 50 new jobs, but USCIS wants to see not only I-9 forms for these positions (which is fair enough) but also unemployment reports to show the jobs. If Microsoft has let's say 30,000 employees in its payroll, there is no way Microsoft will provide the complete unemployment report for all their 30,000 employees to show that the 50 new employees were hired. That just isn't done for a variety of reasons. USCIS examiner can always come out to the site and do an inspection if he or she does not believe certain representations made in I-829 petitions, but the problem is USCIS does not want to expend its resources to verify. USCIS and its examiners have to realize that in some cases there is no way to prove the job-creation without having someone come out to the field to do an inspection, or you believe the representations made, let's say in a letter given by the Microsoft stating that the 50 jobs have been created. Now, if USCIS takes the position why it should believe the letter signed by a Microsoft officer, then really, there is nothing you can submit that would suffice the USCIS' demands.

Of course, the above issues have nothing to do with the fact that constructions jobs would be pretty much close to impossible to count with accuracy, due to the nature of how construction industry works.