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EB-5 Law & Related U.S. Law


FAQs on EB-5 law and related immigration law

[Q] In troubled business case, is the number of jobs that have to be preserved 10 or more, or not less than the number of employees before the investment??

USCIS has stated:

Answer: Every EB-5 investor must create at least 10 jobs as a result of his or her capital investment. However, meeting the job creation requirements through job maintenance in a “troubled business” also involves demonstrating that the number of existing employees were maintained at no less than the pre-investment level during the EB-5 investor’s two year period of conditional permanent residence. [See 8 CFR 204.6(j)(4)(ii) & 8 CFR 216.6(c)(1)(iv).]

8 CFR 204.6(j)(4)(ii) reads:

[Q] Are USCIS or CSC representatives' oral or written answers at EB-5 stakeholders meetings deemed to be "official" USCIS positions?

Not really. This is why sometimes you will see USCIS or CSC disavow any answers provided at these EB-5 stakeholders meetings. If you look at any presentations prepared by USCIS or CSC, it reads:

This presentation is intended to provide a guide for discussion at the stakeholders’ meeting and to explain current USCIS policy and practice. It is not intended to be an official statement of USCIS policy, and does not supersede any existing statutes, regulations, or policy memoranda. It is not intended to, does not, and may not be relied upon to create any right or benefit, substantive or procedural, enforceable at law or by any individual or other party in any way.

[Q] Does each investor have to create 10 full-time jobs?

[Q] If 2 investors (me and my friend) invest 1 million dollars each to set up a new restaurant, do we have to create 20 employees (10 employees each) or can we create 10 employees only?

The answer depends on whether all investors in a new commercial enterprise are EB-5 investors. If only you are investing and applying for an EB-5 case, whereas others are investing and not pursuing EB-5 cases, then all jobs created from the new business project can be allocated to you, who are pursuing an EB-5 case.

As an example, if the new business will create 25 full-time jobs from the investment from you and your U.S. citizen or green card holder partners, then you can get credit for all 25 jobs.

[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.

[Q] Can all jobs created from a project be allocated to EB-5 investors?

Yes, even if EB-5 investors compose a minority portion of all investors (EB-5 and non-EB-5 investors) in the project. Theoretically, even if out of 100 investors only one investor is EB-5 investor, all jobs from the project can be allocated to this single EB-5 project, in which case a single EB-5 investor can be credited with creating 500 jobs or more. This is another way of saying if a project creates 500 jobs, and there was only one EB-5 investor in the project, all 500 jobs could be allocated to this single EB-5 investor for his or her I-829 petition.

[Q] Can US employer ask for documents to prove proper immigration status from employees for EB-5 case w/o violating I-9 or discrimination laws?

Let's see what INA 274B(a)(6) states:

A person's or other entity's request, for purposes of satisfying the requirements of section 274A(b), for more or different documents than are required under such section or refusing to honor documents tendered that on their face reasonably appear to be genuine shall be treated as an unfair immigration-related employment practice if made for the purpose or with the intent of discriminating against an individual in violation of paragraph (1)."

[Q] Can a state authorize a municipality, city or county to issue a high unemployment area designation letters?

Probably not. USCIS stated that its legal position is that municipalities cannot act for a state by issuing high unemployment area designation letters. Specifically, Texas better change its policy to comply with this USCIS position.

[Q] Can a state designation letter be obtained to say that certain area qualifies as a "rural" area?

No, under the regs, a state cannot designate a specific area as "rural"; they can only provide a designation letter for a high unemployment area.

[Q] Can a troubled business count indirect/induced jobs for I-829 purpose?

Yes, in regional center and also troubled business context. In other words, if an EB-5 project is a regional center affiliated and also qualifies as a troubled business, then direct, indirect and induced job numbers created OR saved can make up the 10 full-time positions required.

[Q] What does EB5 or EB-5 stand for?

EB5 or more accurately EB-5 stands for Employment Based 5th category. Basically, it's a 5th (and last) category of all employment-based immigration categories.

[Q] What is this "material change" that is relevant to I-829 approval that people are talking about?

This new concept was first referred in the Neufeld Guidance Memo of December 2009. Basically, USCIS has left the term to the "when we see it, we will know it" standard. Obviously, this will not work. Logically, one cannot say something is "material", without first asking "in respect to which requirement"?

[HOT] [Q] What was the holding of Matter of Katigbak, which is often cited by USCIS in denying either I-526 or I-829 petition?

Matter of Katigbak, 14 I&N Dec. 45 (Comm’r 1971).

Katigbak held that an I-140 beneficiary must meet all requirements specified on her employer’s labor certification application as of the date of the application’s submission. Specifically, the Katigbak case found: You must determine whether the beneficiary has met the minimum education, training, and experience requirements of the labor certification at the time the application for labor certification was filed with DOL. You cannot approve a petition for a preference classification if the beneficiary was not fully qualified for the preference by the priority date of the labor certification.

[Q] What is EB-5 law?

After many years of practicing in the EB-5 area, the best practical answer we can give is "EB-5 law is whatever USCIS says it is UNLESS the Congress or federal court says otherwise." :) Forget a long legalese explanation; this is the best practical definition we can provide.

[Q] May I submit H-1B non-immigrant petition at the same time I submit I-526 immigrant petition?

Yes, legally speaking, neither petition will be adversely affected by the other. This is because H-1B nonimmigrant petition is a "dual" immigrant and nonimmigrant intent -- that is H-1B petitioner may possess an immigrant intent as shown by the submission of I-526 immigrant petition.

[Q] Does CSPA apply to EB-5 cases?

Of course, the Child Status Protection Act (CSPA) applies to all family-based and employment-based immigration cases. As you know, EB-5 stands for Employment-based Fifth Category. :)

As usual, USCIS and DOS interpret CSPA narrowly.