Mark A Ivener, A Law Corporation

USCIS Issues Operational Guidance for EB-5 Cases Involving Tenant Occupancy

U.S. Citizenship and Immigration Services (USCIS) released long-awaited operational guidance (PDF memo) for EB-5 cases involving tenant occupancy on December 20, 2012. USCIS said the memorandum is intended to facilitate adjudication of cases involving issues related to the “tenant-occupancy” methodology for establishing job creation in EB-5 cases. The agency noted that the guidance “has been formulated following careful internal deliberation [and] consultation with sister government agencies,” along with a “review of responses to requests for evidence (RFEs) issued in February 2012 to a number of outstanding Regional Center applicants who relied on the tenant-occupancy methodology.” USCIS will apply the guidance to pending cases and cases filed on or after December 20, 2012, that rely on the tenant-occupancy methodology. The guidance does not rescind or supersede other EB-5 guidance.

USCIS noted that among the issues raised in the February 2012 RFEs, USCIS sought evidence that the projected jobs attributable to prospective tenants (which would occupy the commercial space created by the EB-5 capital) would represent newly created jobs, not jobs that the tenant had merely relocated. The agency said that such determinations are necessary to assess whether there is a “reasonable causal link” between the EB-5 enterprise and the job creation that would allow for the attribution of the tenant jobs to the EB-5 enterprise. The RFEs “suggested the types of evidence applicants could submit to make this showing.”

In regional center cases that rely on tenant occupancy models, USCIS requires evidence that the claimed jobs result, directly or indirectly, from the economic activity of the EB-5 commercial enterprise. With respect to indirect job creation, applicants and petitioners must project the number of newly created jobs that would not have been created but for the economic activity of the EB-5 commercial enterprise. “In making that projection, they are to use economically and statistically valid forecasting tools,” USCIS noted.

The agency said that whether an applicant or petitioner has demonstrated that an EB-5 enterprise caused the creation of indirect tenant jobs requires case-by-case determinations and generally also requires an evaluation of the verifiable detail provided and the overall reasonableness of the methodology as presented. The guidance memo gives additional details about the types of evidence and approaches applicants and petitioners may use, and discusses the appropriate language in approval notices regarding the assumptions underlying the approval.

USCIS said it will issue separate guidance on crediting jobs when more than one EB-5 entity may be seeking credit for an identical position.

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Mark A. Ivener, A Law Corporation, a nationally recognized law firm, has successfully assisted hundreds of clients in immigration matters.