[HOT] Confusion reigns again on TEA issue


In the presentation material for June 30th 2011 EB-5 Stakeholders Teleconference, USCIS stated:

Targeted Employment Area

•USCIS is currently reviewing the policy regarding TEA
designations, keeping in mind that USCIS must fulfill its
responsibility to ensure statutory and regulatory
compliance while, at the same time, not rendering a
state’s TEA designation immaterial.

•In the meantime, USCIS is following the current policy
as set forth in the December 11, 2009 memo.

See http://eb-5center.com/files/June%20EB-5%20presentation%20063011.pdf for the June 30th Presentation.

See http://www.eb-5center.com/files/12-11-09%20Adjudication%20of%20EB-5%20Re... for the December 11, 2009 Neufeld Guidance Memo.

The December 11, 2009 Memo, as far as I can ascertain, says mainly two things about TEA issue.

1. It first says TEA must be determined either at the time the investment is made or when I-526 is filed, whichever is earlier.

2. It also seems to say that although combining of contiguous census tracts may be indicative of "gerrymandering", such TEA designation accompanied by HUA certification letter from an authorized state agency is valid and will not be questioned by USCIS examiners.

Based on my above understanding of what the December 11, 2009 Memo says on the TEA issue, what USCIS now says on the TEA issue in the recent June 30th 2011 presentation material -- that "USCIS is currently reviewing the policy regarding TEA designations, keeping in mind that USCIS must fulfill its responsibility to ensure statutory and regulatory compliance while, at the same time, not rendering a state’s TEA designation immaterial." -- sounds ominous to me.

Adding to the further confusion, USCIS during the same teleconference unequivocally stated that census tract(s) are geographic (not political) subdivisions. Of course, nothing USCIS says or presents during EB-5 teleconferences is to be considered the official position of USCIS.

Also, the rumor is that USCIS has contacted certain state agencies in charge of issuing High Unemployment Area certification letters to "advise" them of what USCIS thinks is the correct procedure and standards in issuing such HUA certification letters.

In the meantime, EB-5 projects get stalled and delayed, and are concerned if they proceed based on the December 11, 2009 Memo and USCIS changes its policy on this issue, they will get caught in the middle. It's time for some USCIS officer to step in and say "enough is enough" on this issue and tell CSC examiners to stop questioning the state agencies' HUA designation letters. I have no idea why USCIS wants to invite further headaches when it has enough issues to decide.

To a more discerning potential EB-5 investors, all this may indicate "EB-5 law just is not stable enough to pursue". They may just say "Heck, I am not going to invest my hard-earned money and time to a Program when there are so many undecided and unclear issues on key aspects of I-526 and I-829 petitions. USA wants my money but doesn't want to give me permanent green cards even when I create jobs. Forget this." Honestly, I cannot say I disagree. The Regional Center Program reemerged around 2003, and USCIS still has not come up with clear policies and rationales on many key EB-5 issues -- that's just too long.

President Obama and politicians who say they want to create more jobs, are you listening?