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USCIS September 10, 2014 Stakeholders Call Report
The USCIS answered my question put to them in writing:
Q: Generally speaking, it is USCIS policy that the jobs need to be created at the time of filing the I-829 (or within a reasonable time, which the May 30, 2013 Memo says 1 year absent a force majeure). It has been clarified that if construction lasts 2 years or more, permanent on-site construction jobs may be counted toward job creation.
Given the processing time of I-526s, delays at the NVC and quota retrogression in May 2015 (as predicted by DOS’s Charles Oppenheim), initial processing for EB-5s may well take 2 to 3 years plus. Counting a conditional residence period of 21-24 months, an I-829 may not be filed for 4 to 5 years after the I-526 filing.
Please confirm that construction impact jobs (direct jobs for construction lasting two years or more, or indirect and induced jobs arising from any construction) may be counted even if construction has been completed by the time of the filing of the I-829.
The USCIS practice in this regard is to permit counting such jobs at the I-829 stage. One experienced EB-5 economist comment and stated “for on-site construction jobs, USCIS permits looking back and will permit such job creation. But generally, operation jobs must exist at the I-829 filing or be created within 1 year.” However, we note the USCIS 12-11-09 policy memo which is part of the AFM however still says construction jobs must exist at the time the I-829 is filed.
In this regard, please note that I-829 filing can be delayed for reasons including extended I-526 or visa/adjustment adjudication, visa number unavailability, family emergencies that delay use of visa, etc., and it would be unreasonable to subject investors, who plan to count construction impact jobs, to vulnerability from such uncontrollable situations.
A: If the jobs are created and the construction jobs are two-year jobs, they can be counted and need not be on-going jobs at the I-829 filing.
I also asked would it be acceptable to have a guarantee from the job creating entity (JCE) to the new commercial enterprise (NCE) when the guarantee is not permitted to the investor directly. The answer was not so clear, but the official said it was acceptable when funds were at risk in the NCE and he gave the example of an insurance company providing the guarantee.
I also asked, given the backlogs what can be done for cases on file long past the stated processing times. USCIS said they would consider an escalating system. I followed up with an email about this with USCIS. We will see.
Escrow Holdback Provisions
The USCIS said an escrow holdback plan was permissible. Overall, USCIS provided a little more information than in the past. USCIS gave an example of an approvable structure for escrow holdback accounts. An EB-5 project may establish two escrow accounts. An investor’s funds can be split and deposited to both escrow accounts. A primary escrow account may hold capital funds that are released for job creating activities upon filing the I-526. A secondary escrow account may hold back funds that can be released to an investor as a refund in case of I-526 denial. The funds in the holdback account may also be released to the project upon the earlier of the approval of the I-526 or denial of another investor’s I-526.
The use of escrow is not required under the regulations. If using this type of structure, it will be important for projects to keep clear and detailed records for investors to present at the I-829 stage to show the investor can be credited with the minimum required investment amount and the funds were placed at risk.
A non-profit may receive EB-5 capital provided the funds first go to a new for profit commercial enterprise. For example, one that loans funds to the job creating, non-profit organization.
The processing of electronically filed I-526s is the same as paper filed cases.