USCIS Creates Controversy Over Tenant-Occupancy Economic Model

USCIS has issued over 80 RFEs concerning the tenant-occupancy methodology in recent months. Some regional centers have complained that the new memo constitutes a change in policy and that in any event, USCIS should not apply its new interpretation retroactively to already approved regional centers or EB-5 petitions that were filed before the February 17 memo.

In an effort to explain its position, USCIS Director Alejandro Mayorkas held a conference call on April 27, 2012, on the tenant-occupancy economic model and related RFEs. According to an unofficial transcript of his comments, Director Mayorkas said there would be a follow-up engagement on this topic and that USCIS plans to release a tip sheet with economic analysis guidance. He noted that USCIS has hired full-time economists and business analysts to improve the quality of the agency’s work and the analysis of EB-5 petitions.

Director Mayorkas noted that USCIS decisions on the economic methodology presented in EB-5 cases are “very fact-specific.” He said that USCIS has a “deference policy” and is “communicating to our adjudicators that they are to accord deference to prior adjudications.” He noted that USCIS’s adjudicators “should rely on a previous determination that the economic methodology is reasonable when [it] is presented to us in a later proceeding based on materially similar facts.” If the facts underlying the application of the economic methodology have materially changed, however, USCIS would conduct a fresh review of the new facts “to determine whether the petitioner or applicant has complied with the requirements of the EB-5 program, including the job creation requirement.”