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November 14 2012

EB-5 Job Creation

In February 2012, the USCIS began issuing Requests For Evidence (RFEs) questioning whether a project’s job creation may include new jobs created by a project’s tenant, such as a new business in an office building or retail mall. Generally speaking, the USCIS’s new position is that such jobs cannot be counted except in exceptional circumstances, such as where there are no other spaces available for the new business to start up or expand. This is called USCIS’s “tenant occupancy” policy.

Since then, USCIS has issued some project denials, but on other technical grounds, not tenant occupancy. One of these project denials has been reopened on order by a judge.

In another denial based on technical grounds the USCIS said:

USCIS is currently studying whether this model is economically sound or whether it provides a reasoned basis for determining that a petitioner is able to meet the job requirements under the statute, regulations, and precedent decisions. Deferral of this issue at this time does not preclude USCIS from examining the use of such methodology in subsequent decisions concerning this NCE or any particular alien’s investment. 

This is curious language, and it seems the USCIS is unsure of its policy on the new tenant job creation counting toward the 10 jobs each investor must create. USCIS has scheduled “A Conversation with Director Mayorkas” on Dec. 3, and we believe Mr. Mayorkas will discuss the tenant occupancy issue in that meeting.