USCIS Issues EB-5 Operational Guidance on Tenant Occupancy Job Creation

December 28, 2012

On December 20, 2012 U.S. Citizenship and Immigration Services (USCIS) released an operational guidance memorandum regarding EB-5 cases relying on job creation from tenant occupancy. This memorandum results from the numerous Requests for Evidence (RFE) issued by USCIS as early as February 2012.  The memorandum notes that the RFE’s sought evidence that the projected jobs attributable to prospective tenants occupying the commercial space created by the EB-5 capital would represent newly created jobs and not just jobs that the tenant had merely relocated. The USCIS stated that a “reasonable causal link” must exist between the EB-5 project and the job creation in order to permit the attribution of the tenant jobs.

Pursuant to the memorandum, the USCIS requires evidence that the claimed tenant job creation results, directly or indirectly, from the economic activity of the EB-5 project. With respect to indirect job creation, USCIS requires that the projections identify the number of newly created jobs that would not have been created but for the economic activity of the EB-5 project. As with all projections, USCIS requires they be supported by  economically and statistically valid forecasting tools  USCIS will evaluate the verifiable detail provided and the overall reasonableness of the methodology presented on a case-by-case basis. The memorandum gives additional information about the types of evidence and approaches that may be used and discusses the appropriate language in approval notices regarding the assumptions underlying the approval.

The memorandum states 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.

The memorandum is available here.