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[HOT] Good articles by other EB-5 practitioners summarizing recent USCIS guidance memos

The below are two fine articles by Mr. Stephen Yale-Loehr and Mr. Boyd Campbell, respectively, summarizing several guidance memos recently issued by the USCIS on certain EB-5 issues. I encourage people to read the below articles. The two articles reflect similar but different viewpoints.

USCIS guidance memos referenced in the below articles can be found at:

While I agree with most of the contents in the article, I take a slightly different stance on the significance of the recent USCIS guidance memos and which of the EB-5 issues are more urgent for USCIS' consideration.

I think these memos are significant for the following reasons:

1. These memos make it clear that the requisite jobs cannot be created 4 or 5 years down the road from the time of filing I-526 petition. In other words, EB-5 project entity should not only focus on the number of jobs that will be created but when these jobs will be created.

2. The Neufeld memo appears to give a green light (support?) to the usage of the RIMS II methodology in that there will be a presumption by adjudicating USCIS examiners that the RIMS II methodology meets the requisite time-frame requirement for job creation.

3. These memos make it clear that certain basic assumptions underlying the methodologies will be or can be questioned or re-examined at I-829 stage. You have to be ready, willing and able to show at the I-829 stage that the underlying assumptions for your methodology have been fulfilled, and if they have not been fulfilled, you can still create the jobs within "a reasonable time" or how you have still met the EB-5 requirements under the changed circumstances.

4. These memos explain clearly how the construction-related jobs will be treated or counted. The memos appear to suggest that the same rationale would hold non-construction jobs that last for over 2 years. From a common-sense viewpoint and aside from the fact that the EB-5 regulation says so, I don't see what difference it makes whether these positions are filled by "independent contractors" or they are filled by part-timers, because as far as I am concerned, the jobs are jobs. Does one full-time job have a greater economic value than two part-time jobs? Common sense wise, there doesn't seem to be a difference.

I think the following issues not yet addressed (by the USCIS guidance memos or through answers to teleconferences) are just as urgent:

1. What happens when there has been changes in an EB-5 project initially contemplated after I-526 petition has been approved but the jobs have been created. For example, let's say you initially stated in your business plan that you were going to build a hotel, but due to the changed economic circumstances, etc., you built a grocery store instead and created requisite jobs? This is urgent due to the terrible effects of the stagnant world-wide economy.

2. Does the USCIS examiners have capability to review and understand how the methodologies are applied to specific EB-5 projects?

3. Will USCIS count indirect and induced job-creation falling outside the applicable geographic region of the RC Program? For example, if the RC is for Los Angeles County, can the indirect and induced jobs created in California (but outside the Los Angeles County) or in other states be counted? Common sense and EB-5 regulations say "no", and that the jobs created within the applicable geographic region only should count; but it appears to me that this is not the case for all RCs.

4. Why shouldn't two part-time positions for similar positions (even different positions) not count as one full-time position? Is there a valid economic rationale for the current approach?

5. As long as the positions are for two years or longer, what is the rationale for not allowing independent contractors to fill these positions? In my book, anyone who works in the same position for two years are not "independent contractors" in the first place.