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[Q] Can USCIS be more consistent in adjudicating EB-5 cases, especially with I-829 cases?


[Q] Practitioners are concerned that there is little certainty on which investors can rely in assessing job creation. After a regional center’s job creation methodology is accepted in deciding the regional center’s charter, RFEs on I-526s and I-829s question the same methodology and economist reports repeatedly. People are frustrated that they have to repeatedly prove the same methodology for indirect job creation. For example, a regional center’s economic model is accepted for I-526s for numerous projects and then it is questioned again in I-829s, long after it was accepted for other I-526s in the same project. Can Headquarters help with creating more consistency in adjudications?

USCIS Answer: We know that this is an issue. This was addressed in the June 17 memo: http://www.uscis.gov/files/nativedocuments/eb5_17jun09.pdf. At the I-829 stage the inquiry is limited to assessing milestones that were predicted at the I-526 stage of the process. Example: at the I-526 stage the plan was to build a shopping center and lease out the space. At the I-829 stage we would want to know if the space had been substantially leased as predicted. In the alternative, if jobs were predicted based on total expenditure, we would want to know if the funds had been spent as planned. Presently, USCIS is in the process of drafting another guidance memo which will clearly state what will be adjudicated and when (at which stage of the process). Our goal is to not “re-adjudicate” issues previously decided in instances where circumstances remain unchanged.