USCIS Seeks Comment on EB-5 Policy Memo

USCIS is accepting comments until January 21, 2011, on a December 2009 EB-5 policy memorandum. The memo, dated December 11, 2009, from Donald Neufeld, Acting Associate Director, Domestic Operations, is posted on the USCIS website as a PDF. Even though the USCIS issued the Neufeld EB-5 memo over a year ago, USCIS is seeking comments now.

Key aspects of the Neufeld memo include:

Material Changes: The memo states that USCIS plans to require a new I-526 petition to be filed when there is a material change to the business plan after the initial approval. This can have significant consequences for an EB-5 investor, including the need to begin a new two-year conditional residence period and the possibility that a child who has turned 21 since the original I-526 filing would be excluded from the new filing. The memo would also allow the agency to deny an I-829 petition if there are material changes in the business plan.

Streamlining Case Processing: The memo revised the Adjudicator’s Field Manual (AFM) by including guidance on adjudicating “exemplar” filings. The AFM would require ISOs to give deference to prior exemplar approvals during the processing of individual EB-5 petitions as long as the underlying facts remain unchanged. ISOs are instructed to revisit the RC approval if there is a material change, if there is fraud or misrepresentation, or if the RC approval was legally deficient.

Meaning of Full-Time Position: The revised AFM will include guidelines on determining whether the job creation requirement has been met. Intermittent, temporary, seasonal and transient jobs will not be counted toward job creation goals. However, USCIS will allow construction and tourism jobs to be considered permanent if they are created by the EB-5 investment and are expected to last at least two years. ISOs will also be instructed that the full-time jobs cannot be an aggregate of several part-time jobs and cannot be filled by independent contractors.

Determining Targeted Employment Area (TEA): The revised AFM will include guidance in determining whether the investment is in a TEA, allowing the EB-5 investor to invest $900,000 rather than $1,000,000. If the RC project is located in a TEA at the time of the investment, it qualifies as being in a TEA even if the unemployment rate goes down after the investment, because job creation is the goal of the EB-5 program. A claim that only a portion of a geographic area has high unemployment is seen as an attempt to “gerrymander” a finding of high unemployment and is not accepted without a state government designation.