Has USCIS resolved the EB-5 tenant-occupancy issues? I”ve heard that they are now allowing developers to use this methodology to count towards job creation? Is it true that they are approving I-526 petitions with this model now?
USCIS will tell you that they have always been approving applications that utilizes Tenant Occupancy methodology. The issue that they emphasize is whether an applicant or petitioner has demonstrated that an EB-5 enterprise caused the creation of indirect tenant jobs will require determinations on a case-by-case basis and will generally require an evaluation of the verifiable detail provided and the overall reasonableness of the methodology as presented. USCIS requires evidence that the claimed jobs result, directly or indirectly, from the economic activity of the EB-5 commercial enterprise. Jobs that are merely re-located rather than created do not count. To claim credit for tenant jobs, applicants and petitioners may present evidence backed by reasonable methods that map a specific amount of direct, imputed, or subsidized investment to such new jobs. However, for applicants and petitioners that instead seek to utilize a facilitation-based approach, the case will depend on the extent to which applicants or petitioners can demonstrate that the economic benefits provided by a specific space project will remove a significant market-based constraint. One way applicants and petitioners can make this showing is to indicate how a specific space project will correct market imperfections and generate net new labor demand and income that will result in a specified prospective number of tenant jobs that will locate in that space.
The government has issued some preliminary regulation with regard to the tenant occupancy issue. I do not believe that the matter has been finalized as it is still under review in the draft memorandum that has been issued for EB five purposes at this time.
USCIS has recently released additional guidance regarding how EB-5 cases involving tenant-occupancy job creation methodology will be adjudicated. Such determinations will be made on a case-by-case basis, and USCIS will still require evidence that the claimed jobs result, directly or indirectly, from the economic activity of the EB-5 project. Jobs that are merely relocated rather than created will not be counted. I encourage you to consult an EB-5 immigration attorney. Should you have further questions, please do not hesitate to contact me.
While USCIS has issued a memo purporting to clarify Tenant-Occupancy issues, there is still no definitive adjudication on the matter. EB-5 Service providers expect to have more clarity shortly.
USCIS released a Memorandum at the end of 2012 explaining how they will be addressing tenant-occupancy. However, USCIS stated that it will be on a case by case basis. As of right now, American Immigration Lawyers Association (AILA) has not seen received any feedback about approvals or denials of pending cases. If you have any other questions, please do not hesitate to contact me. Thank you.
USCIS issued a new guidance on this issue in December 2012. The guidance provides some help but without seeing actual adjudications, it''s still difficult to know whether, and to what extent a regional center can count tenant''s job in a development. You need to consult an experienced EB5 attorney. Please feel free to contact us for regional center questions.
There are some acceptable ways to use tenant-occupancy. USCIS issued a recent memo on the subject. There are obvious restrictions for using this job creation methodology. Hence, how USCIS will adjudicate cases which utilize this strategy is still being determined. For more information, please feel free to contact me.
No, these issues have not yet been fully resolved.
Yes, they have resolved the tenant-occupancy issues.
USCIS continues to allow employment creation through the tenant occupancy model, based upon specific requirements from the USCIS.
A statement just came out. I will be analyzing over the weekend.
So long as the jobs are newly created.
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