Important Points From The New EB-5 Policy Manual

Indirect Job Creation

The Policy Manual stales that USCIS may request additional evidence that indirect jobs (based on reasonable economic models) are full-time jobs. It is baffling to these authors how/why USCIS can require an economist to determine whether indirect jobs are full-time. RIMS II, 1MPLAN, REDYN and other economic methodologies are relied on in many industries, not just EB-5 as indicative of job creation.

Job Allocation

Unless otherwise stated in the relevant documents, full-time positions will be allocated to immigrant investors based on the date their Form I-829 was filed. The Policy Manual provides the following example:

If the new commercial enterprise creates 25 jobs, yet are three immigrant investors associated with the new commercial enterprise and the record is silent on the issue of allocation, the first two immigrant investors to file the petition to remove conditions will each get to count 10 of the 25 jobs. The third immigrant investor to file the petition to remove conditions is allocated the remaining five jobs.

We believe this policy is well­ intended and should ensure that not all investors in a project which fails to create sufficient jobs will be prevented from obtaining unconditional lawful permanent residency

I-829 Adjudications

USCIS is proposing that all conditional permanent residents filing a Form I-829 include the comprehensive business plan and economic analysis previously submitted with the Form I-526. USCIS clarifies that the jobs need not be in existence of the time of I-829 adjudication to be credited, as long as they were created as a result of the Immigrant’s investment and such jobs were considered permanent when created.

This clarification though raises more questions about the difficult concept of “material change.” It states that changes that occur after a Form I-526 filing but before an immigrant investor obtains conditional permanent resident status are considered material if they result in the investor’s ineligibility This appears too vague and could be interpreted to mean leniency for minor changes that occur after filing but before approval of the conditional green card. The May 3oth 2013 guidance memo is rigid on changes occurring prior to issuance of conditional permanent residence, but somewhat more lenient on changes that occur after approval of conditional permanent residence.

This is important especially for Chinese waiting in the quota line who can get approval of their petitions but must wait for their place in line before they can obtain conditional permanent residence.

Deference

The Policy Manual confirms there are distinct eligibility requirements at the Form I-526 stage and the Form I-829 stage of the EB”5 immigration process and that USCIS will generally defer to prior favorable determinations at a later stage in the process. However, it appears that USCIS may be headed into looking at the earlier Form I-526 documentation to ensure here is not a material change of facts, fraud, willful misrepresentation, or an objective mistake of fact or law evidencing ineligibility.

With the EB-5 regional center sunset date of December 9, 2016 approaching, the EB-5 field is extremely active with prospective new legislation circulating.

At this time the two options of a short continuing resolution passing, which might extend the program without change until March 31, 2017, or passage of an entirely new bill are both possible.

This post is designed to provide practical and useful information on the subject matter covered. However, It Is provided with the understanding that no legal, tax, accounting, or other professional services are being rendered or provided. If legal advice or other expert assistance is required, the services of a competent professional should be sought.