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[Q] How does USCIS practically go about establishing or confirming whether certain area is a TEA?


See what USCIS said on this issue.

USCIS stated that the investor’s Form I-526 petition must show that the area in which the capital investment has been made qualifies as a “rural” area or an area of “high unemployment as of the date of filing of the Form I-526 petition or the date of the capital investment, whichever occurs first. For additional information regarding the statistics to use in making TEA determinations, stakeholders may contact the Local Area Unemployment Statistics (LAUS) division within the U.S. Bureau of Labor Statistics (BLS) as the BLS has published technical bulletins on this topic.

Moreover, two avenues by which someone can establish an area as a TEA are by providing the statistical documentation directly to USCIS or by obtaining a TEA determination from the state in the area in which the investment is going to be made. In every case, the TEA determination is made as part of an I-526 petition adjudication.

Let's examine the regulatory definition of TEA.

Targeted employment area

means an area which, at the time of investment, is a rural area or an area which has experienced unemployment of at least 150 per cent of the national average rate.

Rural area

means any area not within either a metropolitan statistical area (as designated by the Office of Management and Budget) or the outer boundary of any city or town having a population of 20,000 or more.

According to some EB-5 practitioners, even though the regulation uses the word "or," the USCIS interprets this definition as meaning that an area must be both outside a metropolitan statistical area and have a population of less than 20,000. This means some truly rural areas cannot qualify as TEAs for EB-5 purposes because they happen to be located in a sprawling MSA. If the USCIS refuses to change its interpretation of the definition, Congress should fix the problem legislatively. Personally, USCIS' interpretation seems more convincing here, but the real question is does this reflect the statutory goal, because the regulations are made up by USCIS, and USCIS did not have to define "rural area" in this restrictive manner. I know many areas within populated city or county which is undeveloped and should be considered "rural area".

Again, this seems to be a very restrictive approach. Why take this approach if the underlying purpose of the EB-5 Program is to create jobs. Let businesses create jobs, and the government should interfere as little as possible. Again, it quite doesn't make sense to this author what is the benefit of trying to kick out EB-5 investors who have not committed crimes and who undoubtedly did help the US economy, although may not have met the 10 full-time jobs creation requirement.