USCIS Policy Update for EB-5: No more job creation through the ‘Tenant-Occupancy’ methodology | KNG Law

On May 15, 2018, USCIS revised its guidance on immigrant investor (EB-5) cases involving tenant occupancy models used for real estate development. 

Job creation is a key element to successfully removing conditions on an EB-5 investor’s Conditional Permanent Resident status.

An EB-5 case generally requires that at least ten full-time equivalent new jobs be created for U.S. workers by each EB-5  immigrant’s investment. “Indirect” and “induced” jobs are included in the job creation count for a regional center EB-5.

Prior to the policy update, USCIS accepted the tenant-occupancy model as a way to show “indirect” job creation. As of May 15, 2018, USCIS will no longer accept tenant-occupancy models. USCIS is barring tenant-occupancy methodology explaining that a tenant-occupancy model is not a reasonable method because the relationship between the investment and the jobs is too tenuous. As such, EB-5 investors will no longer be able to rely on this model and will have to look to other reasonable methodologies to project (anticipate) job creation. 

However, USCIS will continue to give deference to Form I-526, Immigrant Petition by Alien Entrepreneur, and Form I-829, Petition by Entrepreneur to Remove Conditions on Permanent Resident Status, when directly related to previously approved projects, absent material change, fraud or misrepresentation, or legal deficiency of the prior determination.

Comments to this policy change are now being reviewed by USCIS. 

Updates By Sumayyah Badat J.D. | Immigration Attorney | Houston, Texas