You are here[HOT] USCIS issues an email explanation regarding "EB-5 Tenant Occupancy" related jobs and "excess demand"

[HOT] USCIS issues an email explanation regarding "EB-5 Tenant Occupancy" related jobs and "excess demand"


By eb5attorney - Posted on 18 February 2012

On February 17, 2012, USCIS issued through USCIS Office of Public Engagement the below message regarding "EB-5 Tenant Occupancy" and "excess demand" issues. We are not certain what is exactly meant by the following language. We are also not certain why this email message was issued at all, unless USCIS/CSC wanted to provide an advance notice of numerous RFEs to come involving this issue. Will this policy be applied retroactively? Another uncertainty. I hate to be a RC operator who has to comply with all kinds of USCIS policy or interpretation changes that suddenly get issued without an advance warning! I am sure many Regional Centers are wondering what is the value of getting RC designations when USCIS can change the policies at any time.

We believe that this tenant-occupancy issue is just a sub-issue within a broader attempt by USCIS to tweak what it perceives to be more reasonable method of counting jobs. It's not that we disagree with USCIS' attempt to do so, but it sure would be nice if USCIS gave some advance warning of impending changes and takes care not to apply these changes retroactively. After all, why hold regularly scheduled EB-5 teleconferences and not use them as opportunities to give an advance warning of impending changes which RCs should incorporate before they put a time and effort to start EB-5 projects. A kinder and gentler USCIS would go a long way in spurring the EB-5 Program.

I-526 Immigrant Petitions by Alien Entrepreneurs and I-829 Petitions by Entrepreneurs to Remove Conditions will have predictability in connection with early regional center adjudications.

What is clear is that USCIS/CSC had some issues with some methodologies of counting jobs resulting from EB-5 projects which seek credit for job creation by independent tenant businesses that lease space in buildings developed with EB-5 funding. Instead of prohibiting all jobs arising from "tenant-occupancy", USCIS is saying that it will make a determination on whether it is economically reasonable to attribute such "tenant-occupancy" jobs on a case-by-case basis, based on the specific facts presented and the persuasiveness or "reasonableness" of the accompanying economic analysis.

What is not so clear is the above statement that I-526s and I-829s "will have predictability in connection with early regional center adjudications." Does this mean any methodologies contained in already-approved regional center designation applications will be honored in context of I-526s and I-829s, whether such methodologies are deemed to be "reasonable"? Basically, this kind of word game does not lead to predictability.

Dear Stakeholder,

In our last stakeholder call regarding the EB-5 immigrant investor program, a number of stakeholders raised questions with respect to our adjudication of petitions that for purposes of the job creation requirement have utilized what has been commonly termed a “tenant-occupancy” methodology. In light of the number of questions we received on this subject, we thought that providing clarification of our approach was warranted.

The “tenant-occupancy” methodology seeks credit for job creation by independent tenant businesses that lease space in buildings developed with EB-5 funding. USCIS continues to recognize that whether it is economically reasonable to attribute such “tenant-occupancy” jobs to the underlying EB-5 commercial real estate project is a fact-specific question. Each case filed will depend on the specific facts presented and the accompanying economic analysis.

USCIS is now moving forward with the adjudication of certain pending I-924 Applications For Regional Centers Under the Immigrant Investor Pilot Program that are supported by the “tenant-occupancy” economic methodology. Our newly-hired economists and business analysts will be bringing expertise to these new adjudications, and requests for evidence will be issued to certain applicants and petitioners to address any questions or issues we have about the economic methodologies employed in their specific cases. Our adjudications will continue to be made on a case-by-case basis and we do not intend to revisit factual findings. I-526 Immigrant Petitions by Alien Entrepreneurs and I-829 Petitions by Entrepreneurs to Remove Conditions will have predictability in connection with early regional center adjudications.

Our retention of experts with economic and business analysis expertise is part of our ongoing efforts to improve our administration of the EB-5 program. We are taking other steps to both improve the efficiency of the program as well as to ensure its integrity. We look forward to keeping you informed of these improvements.

Kind Regards,

Office of Public Engagement
U.S. Citizenship and Immigration Services
www.uscis.gov