You are hereFrequently Asked Questions / EB-5 Law & Related U.S. Law / [HOT] [Q] Can relocated jobs count? Assume an architecture firm is moving its division from NY to SF.

[HOT] [Q] Can relocated jobs count? Assume an architecture firm is moving its division from NY to SF.

CSC takes the position that such relocated jobs cannot count. Their rationale is as follows:

This question asks that if a large architecture firm moved offices from New York City to San Francisco, would those relocated jobs count for EB-5 purposes since San Francisco would benefit from an increase in jobs? The answer is no, because jobs that were in existence prior to the alien investor’s capital investment into the commercial enterprise cannot be credited towards the requisite creation of 10 jobs per each alien investor.

This is a curious answer given the fact that USCIS readily admits that

USCIS is unaware of any statutory or regulatory requirement, or of any vetted and published policy guidance that addresses the “discounting of relocated jobs” within a regional center’s economic analysis.

Basically, USCIS had an opportunity to choose a more practical position, but it simply chose to stick to a position which does not jibe with the real world needs, perhaps fearing that it would not have the means to check whether such relocation was truly necessary due to bona-fide business reason.

We believe a federal court will not agree with USCIS on this issue. Common sense wise, if a job is "new" to SF, and there was a bona fide business reason why the relocation was necessary, and there is a nexus between the alien investor's investment in SF and the "new" jobs being relocated to SF, then all EB-5 requirements have been met. Really, the heart of the issue goes to whether the jobs are "new" from the perspective of the United States, or are "new" from the perspective of SF, the underlying region. Where USCIS already stated that indirect jobs created outside the underlying region cannot count towards I-829 petition, it seems incongruous or illogical to state that the jobs relocated into the region should not count: if the jobs are "new" to the underlying region, and such relocation was due to bona fide business reason, then the relocated jobs should count as "new" to the underlying region.

Of course, disagreeing with the USCIS is one thing; spending a lot of money and time to fight USCIS is an entirely different matter.