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How can a Targeted Employment Area be backdated?

I was wondering if it is possible to request a TEA for a past time period and what the associated restrictions are? For example, if someone made the required investment in 2012, could they apply now for a TEA designation for the project? Is there any other way that a past dated TEA may be available or required? I work for a state government agency and have received a number of questions on the subject.

Answers

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    Fredrick W Voigtmann

    Immigration Attorney
    Answered on

    Since the state and federal unemployment data from 2012 is readily available, there should not be any reason why the state agency with authority to issue TEA letters could not verify whether or not a particular area qualified for TEA designation at a prior time. There should be no backdating involved; the letter would simply say that a request was received from a project developer, regional center, or direct EB-5 investor (whichever the case may be) to verify that a certain area qualified as a TEA at the time of investment. There does not seem to be any USCIS law or regulation preventing issuance or recognition of such a letter. It would be considered as evidence by the USCIS and it should be given the appropriate evidentiary weight and afforded the same deference as any other TEA letter.

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    Ed Beshara

    Immigration Attorney
    Answered on

    TEAs are prepared for specific time periods. You can contact the appropriate department of the State which prepares these TEAs and request a copy of the one prepared in 2012.

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    John J Downey

    Immigration Attorney
    Answered on

    No. The TEA must be current with the I-526 petition.

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    Salvatore Picataggio

    Immigration Attorney
    Answered on

    The TEA designation must be in place at the time of investment or filing the I-526. If they filed the I-526 already, they should have already included the TEA designation to allow for the $500,000 investment. If they did not include this designation and invested only $500,000, the petition may be denied or receive an RFE.

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    Rachel Lew

    Immigration Attorney
    Answered on

    INA 203(b)(5)(B) and 8 CFR 204.6(j)(6) require that in order to establish eligibility for the reduced EB-5 investment threshold of USD $500,000 established by the USCIS, the area in which the alien investor makes a capital investment must qualify as an rural area or an area of high unemployment when the investment is made. The term "high unemployment area" means an area which has experienced unemployment of at least 150 percent of the national average rate [See, INA 203(b)(5)(B)(ii)]. The I-526 petitioner must demonstrate that, at the time the capital investment is made or the petition is filed (whichever occurs first), there has been an unemployment rate of at least 150% of the national unemployment rate within which the commercial enterprise that will create jobs is located. This should be based on the most recent information available to the general public from federal or state government sources at the time the I-526 petition is submitted. Therefore, if the EB-5 investor made the capital investment in 2012, the required TEA designation letter from the state has to be authorized for the time period covering the date investment was made or the date when the I-526 petition was filed. The TEA designation covering later time periods will not apply to this investor in the adjudication of I-526 petition by USCIS. That is, submitting a TEA designation letter from the state covering data from 2014 will trigger a further request for evidence of a TEA designation letter covering the date on which the investor's capital investment was made or the date on which this investor's I-526 petition was filed with USCIS.

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    Daniel B Lundy

    Immigration Attorney
    Answered on

    As long as you have access to the data for the applicable period, and as long as you use the correct methodology, there should be no reason why the certification cannot be made after the fact. The question for USCIS is whether the area was a TEA at the time of investment or filing the I-526 petition, whichever is earlier, not the date of the certification. If you have to aggregate census tracts, there is a small possibility that USCIS could object to drawing the boundaries of the TEA after the fact, though I cannot really think of a legal basis for denying a petition at this point. I would imagine that most of the time you get requests like this there was a TEA certified, but it was not updated when the new data was published, and investors kept filing with the old one. In this case, there should be no issue about retroactively drawing the district. The good thing about historical data is once it is published, it generally remains available, and all you are doing here is working with historical data.

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