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[HOT] [Q] Some say for a RC EB-5 case, all you have to do is prove the job-creation at I-526 stage? True?


[Q] Some RCs and/or attorneys take the position that for RC EB-5 case, job-creation needs to be shown only at I-526 petition through use of "reasonable" methodology. Is this true?

No, it's not as simple as that -- far from it. USCIS has already spoken very clearly on this issue through its carefully-crafted June 24th 2009 Neufeld guidance memo and USCIS' responses to Ombudsman's EB-5 recommendations. Basically, USCIS stated that although a "reasonable" methodology can be used at I-526 petition stage to estimate a future job-creation number, the underlying assumptions and/or variables on which the future job numbers were based will be re-examined at the I-829 stage by USCIS examiners, although the methodology itself will not be re-examined. In our opinion, this was the only position USCIS could have taken. Anyway, do not rely on our answer here; read the Neufeld guidance memo and USCIS' response to the Ombudsman's EB-5 recommendations and then decide for yourself what they say.

Even if all the jobs are created indirectly, underlying key assumptions and/or variables must be verified at the I-829 stage. We would actually love it if USCIS takes the position that it will not check the underlying assumptions and/or variables at the I-829 stage, but that just is NOT going to happen in our opinion, unless EB-5 statute itself is amended by Congress. As long as the EB-5 Program's underlying purpose is to create jobs, then USCIS is not going to budge from this position -- unless EB-5 statutes are amended.

Let me give you an example. Assume I-526 petition contains an IMPLAN methodology stating that within 3 years 300 direct and indirect jobs will be created in the applicable geographic region, based on spending of $100 Million and based on 70% occupancy by commercial tenants. Now, the economist who wrote up this job-creation estimate studies probably did a good job, but if you were USCIS, wouldn't you want to check at the I-829 stage that at least $100 Million was spent and there is 70% occupancy rate? If you answer "no", you are either a very nice guy or don't really care about the job-creation. In our opinion, if you don't check whether the assumptions actually were met at the I-829 stage, you will see all sorts of methodologies with inflated job numbers submitted at the I-526 stage, never to be reviewed. [I actually think they should lower the require job number from 10 to 5, but Congress, not USCIS, has to do this through statutory amendments.]

Lastly, USCIS has always been pretty clear on this issue ever since RC Program re-emerged in 2003; therefore, it's not as if USCIS ever stated otherwise or misled anyone on this issue. Having said this, we would be just fine with any statutory amendments doing away with this requirement, but we just don't think this will happen. The day it does happen, we will stop the operation of this website and we might even try to set up a RC Program of our own. :) Just kidding. Anyway, we would recommend that the required job numbers be lowered to 5 from 10 and make it easier for RCs and regular EB-5 projects to meet the job requirement. We actually think having to create 10 full-time jobs is an outrageous requirement now days, especially for non-RC EB-5 project. I think American public and politicians will also support this change.

Am I going overboard when I say that any immigrant who creates even 5 full-time jobs should not only be given green card but be toasted by the Americans living in his neighborhood?