How does USCIS determine if jobs have been preserved?

Numerous factors are considered by USCIS to determine the financial health of the institution and its compliance with EB-5 regulations. Job calculation differs when investing directly or through a regional center. USCIS economists examine the economic report and business plan to draw their conclusions, including job creation or preservation. Where the investment only sustains current employees, but does not create new full-time jobs, it does not meet the job requirement unless the investment is in a "troubled business". A troubled business is one that accrues a net loss for 1 or 2 years exceeding 20 percent of its net worth.

USCIS is not limited to just econometric studies, it has plenary discretion to look at all available information regardless of whether it is quantitative or qualitative. Advisably, if you are considering the possibility of investing in a troubled business, make sure your analysis of such business is properly done and can survive USCIS scrutiny. In essence, put a more credible and reasonable analysis together. With regards to interpretation of "successors in interest to the troubled business," there is no distinction in how either an investor or a regional center (RC) is treated. In fact, what matters is whether an investment plan designed for a troubled business can save the troubled business and results in the creation of the right number of jobs. In essence, the questions are, can the investment plan work and will it create jobs? If the answers are yes, the investing party, regardless of either individual, direct investor or an RC, will be treated as a successor in interest to the troubled business.

There are many factors that contribute to this, and you have correctly predicted that one of the elements that will be looked upon is the economic report.

The first step is to retain the services of an experienced EB-5 attorney who can refer you to an Economist who has EB-5 expertise in calculating how many jobs have to be maintained in a troubled business.

The USCIS has economists on staff to review the economic reports submitted for an EB-5 project. They would review the report to determine if it complies with the regulations regarding job creation.

For a troubled business, the USCIS will look to the actual number of pre-investment jobs in the NCE. The troubled business must employ at least 10 FTEs and it must have maintained the pre-investment employment level (no layoffs or no eliminating positions) during the two-year conditional period. There is no provision for indirect job preservation or econometric methodologies. Therefore, regional centers and troubled businesses do not overlap.