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[HOT] [Q] What do we think of Director Mayorkas' letter to Senator Leahy allowing indirect/induced jobs outside the regional center to count?

First, take a look at the actual letter itself at:

Although this letter helps regional centers now to include additional jobs "estimated" to be created outside the regional center area, we are not sure to what extent CSC will comply with or give effect to this letter, although unofficially, a CSC officer has told us that they will honor the letter. Presumably, Director Mayorkas' letter amounts to a formal change in USCIS policy, but USCIS will probably not issue a formal guidance memo regarding this policy change. We confess it is getting to be extremely difficult and confusing to ascertain what is USCIS policy on any EB-5 issue. In addition, we are not certain that all CSC examiners are aware of what the exact current USCIS policy is on important EB-5 issues such as this.

Although this letter is helpful to regional centers, it does not change the fact that the letter's analysis is flawed in its logic. We believe a regional center designation inherently implies that only those jobs creation effects arising within its regional center geographic area should be counted.

Specifically, although there is nothing in the EB-5 statutes or regulations which specifically prohibit indirect/indirect jobs OUTSIDE the regional center's geography from being counted for I-829 petition, there is nothing in the EB-5 statutes and regulations which allows it either. In other words, it's up to USCIS to choose to go either way. Up to this point, USCIS' favorite way of not allowing certain reasonable EB-5 policies was by saying "There is nothing in the EB-5 law/regulations that specifically allow such proposal." Let's be honest: How many times have USCIS officials uttered these very words to dismiss some very good proposals that actually make sense for the EB-5 Program? We personally have asked USCIS officials during EB-5 Stakeholders Meetings why certain position is not being adopted by USCIS, and USCIS officials always answered our questions with the words: "Well, we would like to, but we believe EB-5 statutes and/or regulations do not specifically permit such policy." However, USCIS is now suddenly and completely reversing its position? If so, there are many more important EB-5 issues on which USCIS should reverse its positions, not just this one.

More logically, USCIS could easily have accomplished the same thing by allowing the entire USA and Territories to count as the regional center area. In fact, there is nothing in the EB-5 statutes or regulations that specifically states that the entire USA and Territories cannot form a regional center. In effect, the job calculation methodologies are going to use the entire USA and Territories as the applicable geographic area to take advantage of the new policy under the letter. This letter will in practice make the current policy of limiting a regional center geographic area almost meaningless because most of the job-calculation methodologies are really designed to count indirect/induced jobs WITHIN the regional center area. Be prepared for some job calculation methodologies to go into a twilight zone, because now even indirect/induced effects of job creation taking place in Guam even though an underlying project takes place in Maryland can count.

Again, the most paramount thing is for USCIS to be consistent and not penalize regional centers and EB-5 investors who followed certain methods or procedures when there was no formal policy on certain issues. This is more important than "liberalizing" the regional center program by expanding jobs which can be counted. Without consistent policies and adjudication, the confusion will reign.

The best thing USCIS can do is be consistent; clearly communicate its positions on important EB-5 issues; do not penalize regional centers and EB-5 investors where they took certain actions at a time when there was no clear or formal policy on the very issue; and adjudicate EB-5 cases fairly and consistently.

Otherwise, the Congress and USCIS should just do away with the EB-5 Program entirely.