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How does the draft policy memo change EB-5 job creation requirements?

We have heard widespread news among the Chinese EB-5 community regarding the draft policy memo issued by USCIS on Aug. 10, 2015. They say the memo indicates that proving job creation requires proving only that at least 10 employees were hired, without proving for how long the employment was maintained. Therefore, they claim that the impact caused by the two-year retrogression for Chinese investors can be easily circumvented when filing the I-829 more than six years down to the road. Is this correct? Based on the draft memo, how long do EB-5-created jobs have to be maintained for?

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    Julia Roussinova

    Immigration Attorney
    Answered on

    The draft memo is not law that has come into effect. You should consult an EB-5 immigration attorney once more information is available after Dec. 11, 2015.

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    John J Downey

    Immigration Attorney
    Answered on

    First and foremost, it is a "draft" memo and does not have any effect as of yet. Try not to be persuaded by rumors. USCIS, the State Department and Congress are trying to address the retrogression problem. There are a number of ways that it can be solved, so just wait until probably early December for a valid answer.

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    Bernard P Wolfsdorf

    Immigration Attorney
    Answered on

    The memo does not resolve all the issues. In fact, the requirement that jobs be created within two years of approval of the EB-5 petition is based on an erroneous assumption. USCIS does not appear to be changing this policy. I do not believe the memo indicates that proving job creation requires proving only that at least 10 employees were hired, without proving for how long the employment was maintained.

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