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What happens if the TEA designation of my EB-5 project becomes invalid?

My application for EB-5 in a TEA was submitted on April 19 and received by USCIS on April 20. New LAUS BLS data came out on April 20 with data that may make the area ineligible as a TEA. I am being advised that since the package was mailed on April 19, this gets me in the clear. I am unsure, however, as I think the day of application is the day of receipt of the package. USCIS may deny my case for TEA designation for being based on outdated data, even though it was not when I mailed my package. Please advise.

Answers

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    Bernard P Wolfsdorf

    Immigration Attorney
    Answered on

    An investor may qualify based on an investment of $500,000 if the investment is in a TEA at the time of investment or the time of filing the I-526 petition, whichever is earlier.

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    Fredrick W Voigtmann

    Immigration Attorney
    Answered on

    If the TEA data was current when USCIS received the I-526 petition, then it should be fine. Otherwise, you will need to get an updated TEA letter.

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    Daniel A Zeft

    Immigration Attorney
    Answered on

    The date of filing is April 20, which is the date that USCIS received your submission. The available data on April 20 determine if the EB-5 project is located in a TEA.

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    Julia Roussinova

    Immigration Attorney
    Answered on

    TEA designation at the time of investment generally governs. TEA designation letters are usually valid for one year unless they state otherwise.

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    Salvatore Picataggio

    Immigration Attorney
    Answered on

    I find it unlikely you would be denied, but you may receive an RFE requesting proof that the area still qualifies.

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    Robin J Gray

    Immigration Attorney
    Answered on

    Generally, the receipt date is the date USCIS considers when determining priority date for EB-5. It appears you may have an argument that your project is grandfathered under the old rules prior to changing the TEA designation since it was received the same day of the change and mailed the day before. It is a close call, but you would have an argument if USCIS denies your case. You may want to have an individual consultation with an attorney to formulate your arguments and position, in the event USCIS denies your case.

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    BoBi Ahn

    Immigration Attorney
    Answered on

    TEA applies to "at the time of investment," so you should be clear.

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    Jinhee Wilde

    Immigration Attorney
    Answered on

    Unfortunately, the date that USCIS will consider is when it received the petition, not when you mailed it. The rule is the petition must be approvable when filed. That means when USCIS received the filing. If, for example, a deadline for request for evidence is today (June 26, 2018), just mailing it today does not meet the deadline, as the response must be in the hands of USCIS to meet the deadline. However, if the TEA certification letter, which is good for one year normally, was still in effect when your petition was submitted and in the hands of USCIS, you could argue that your petition was in compliance and approvable when filed.

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    Belma Chinchoy

    Immigration Attorney
    Answered on

    I would argue that the date of investment TEA qualification governs.

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    Charles Foster

    Immigration Attorney
    Answered on

    If you had a positive TEA designation at the time you filed, it should not be adversely impacted if there was subsequent data which found that your project was no longer located in a TEA. However, to be certain about this, that matter should be contested. Whether or not you get credit for the TEA at the time you file will depend upon the receipt date.

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    A Olusanjo Omoniyi

    Immigration Attorney
    Answered on

    Your fear is understandable. However, since you filed your petition with the most recent and valid data at the time of filing, your petition should be OK. On the other hand, if the new data altered the classification, your team consisting of your attorney and the regional center you are working with should be prepared to argue on the need for an exemption.

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