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May 28 2015

USCIS Stakeholder Call

USCIS will hold a stakeholder call on Thursday, June 4, from 1 to 2:15 p.m. (Eastern). The topic of discussion will be project expenses that are includable (or excludable) for purposes of estimating job creation.

A USCIS economist will make a short presentation and USCIS says they will answer non-case specific stakeholder questions concerning this topic.

EB-5 regional center applicants may create direct and indirect jobs. Most regional centers rely on multiplier tables (also known as input-output modeling) to estimate the number of jobs created. To obtain a valid result, the model’s inputs must be eligible expenses for job creation purposes.

Some types of expenses, such as purchasing land, permits, and transactions costs, are ineligible or limited in their job creation capabilities. USCIS may announce a new policy on what inputs it will exclude.

I will be on the call and will report what USCIS’s economist has to say.


Most state TEA letters are valid for one year. If the state releases new unemployment data before the TEA letter expires, is the letter still valid after the new data is announced? The answer is not clear. A USCIS Request for Evidence (“RFE”) stated:
“Thus, the letter is not sufficient evidence that the project’s location experienced high unemployment based on the most recent publicly available employment statistics at the time the Form I-526 was filed…”

“The letter must meet the requirements of 8 C.F.R. § 204.6(i) and also utilize the most recent publicly available employment statistics which would be for the [last calendar year].” (underlining added)

Most EB-5 experts believe that USCIS policy requires the project be in a TEA at the time of investment or filing the I-526, and if the most recent data does not prove the project is in a TEA at that time, the state’s letter is void.

If funds are in an escrow account and TEA data may change, it is best to file the I-526 or move the funds out of the escrow account to the project before new data is released.

There is proposed legislation to make TEA letters valid for 2 years. As one developer recently told me, “It is extremely difficult to locate a project, finalize the plan, obtain other financing, supporting documents, market the project, and get all investor funds in and file I-526s within one year.”

When the statute comes up for review this summer, this is one area in which you should lobby your elected representatives.