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[HOT] [Q] Can direct construction jobs be credited for EB-5 purposes?


[Q] USCIS already stated that indirect and/or induced construction jobs may be credited for I-829 purposes, but had not taken a formal position on the issue of whether direct construction jobs may count. This is the first time that USCIS was forced to take a clear stance on this issue.

Both direct, indirect and induced construction jobs may count, as long as certain conditions are met. USCIS said in one of its letter responding to Senator Cornyn that construction-related jobs can count as direct jobs only if such positions lasts for 2 years or more. Not very likely due to the nature of construction jobs. Review the recently-issued Neufeld guidance memo for details. See www.eb-5center.com/node/382.

Curiously, CSC examiners appear to be not following their own issued AFM by not counting indirect/induced construction jobs based on spending where construction activities do not last more than 2 years. This issue is in flux so no one knows what is the law. That's the problem with the EB-5 Program according to many EB-5 practitioners -- no one knows. And different examiners appear to be deciding differently.

It should be noted that this new policy overrides the holding in the federal district court case called Spencer case; this shows that USCIS can override past decisions if it wants to.

Personally, if I were USCIS, I would not have allowed the counting of direct construction jobs for the following reasons:

1. For clarity sake, to avoid hazy issue of when the construction begins or ends.

2. For the protection of EB-5 investors who might get sucked into a project which counts direct construction jobs but cannot come up with the paper work to evidence direct, construction jobs at the I-829 stage. This is the biggest concern for me. EB-5 investors can get suckered into various projects which attempt to count "direct, construction jobs" and then at the I-829 stage, find out that the EB-5 project cannot come up with adequate documents to satisfye USCIS that these direct construction jobs really last more than two years and are full-time jobs. Harder said than done. And believe me there are many economists, attorneys and developers who will make it sound so easy.

3. In some sense, USCIS is doing a favor allowing indirect/induced construction jobs to be counted (even though these effects from indirect/induced construction jobs are not permanent lasting), so allowing direct construction jobs to be counted is an overkill or being too generous.