EB5 Investors Magazine Volume 1 Issue 1 | Page 42

From the Desk of an EB-5 Lawyer

by David Hirson
2012 – Year in review – The program thrives with no thanks to USCIS
2012 brought many significant developments to the EB- 5 world . On Sept . 28 , 2012 , Congress extended the expiration date of the EB-5 Regional Center Program ( formerly referred to as a ‘ Pilot Program ’) for an additional three-year period . Since its debut in 1990 , the EB-5 Program has proven particularly invaluable in creating American jobs and providing a boost to the U . S . economy .
David Hirson
As of March 2012 , there have been 2,405 EB-5 Visas issued ( out of the 10,000 available each year ). For the 2012 fiscal year , 5,683 fifth employment-based preference visas were issued to mainland-born investors from China ; China , being the front runner for immigrant investors ( comprising 69.65 % of all applicants ).
USCIS Tenant Occupancy Memo , Feb . 17 , 2012
USCIS said it recognized that many stakeholders raised questions regarding the adjudication of petitions that utilized the “ T-O ” methodology at the previous EB-5 stakeholder meeting ( held on Jan . 23 , 2012 ). USCIS thus attempted , in this memo , to answer the question of whether it was economically feasible to attribute “ T-O ” jobs to underlying EB-5 commercial real estate projects by responding that it is a “ fact-specific question .” USCIS tried further to quell confusion and uncertainty by sharing that its newlyhired economists and business analysts constituted part of its ongoing efforts to improve the administration of the EB- 5 Program . However , it failed to provide any further guidance on how someone may better understand the tenancy occupancy issue that has arisen .
The main issue that has arisen in 2012 is USCIS ’ concern on the “ tenant-occupancy ” ( T-O ) and other methodology for establishing job creation in EB-5 cases . Investors with filed I-526 cases for projects under seasoned , as well as new Regional Centers , relying on the T-O methodology , began to receive Requests for Evidence . The RFEs from Feb . 2012 requested evidence that the , “ projected jobs attributable to prospective tenants ( which would occupy the commercial space created by the EB-5 capital ) would represent newly created jobs , and not jobs that the tenant had merely relocated from another location .” USCIS thereafter released a series of policy memoranda intended to provide guidance on this concern . RFEs were also issued to Regional Centers , and very few new Regional Centers applications were approved in 2012 .
USCIS Operational Guidance on EB-5 Adjudications Involving the Tenant- Occupancy Methodology , May 8 , 2012 USCIS again reiterated that a decision on the economic methodology presented in an EB-5 case is a “ very fact-specific and factdependent one .” In addressing its deference policy , USCIS stated that , “ ISOs [ Immigration Services Officers ] should rely on a previous determination that the economic methodology is reasonable when the methodology is presented to us in a later proceeding based on materially similar facts .” However , USCIS failed to provide any guidance on what type of standard is used for determining “ materially similar facts ” in I-924 or I-526 applications .
David Hirson is a Partner at the global immigration law firm of Fragomen , Del Rey , Bernsen & Loewy . With over 300 immigration attorneys employed and more than 1,900 professionals and support staff located in more than 40 offices in 18 countries worldwide , Fragomen is recognized as the largest and leading immigration services provider . Immigration law is not just a practice area within the Firm – it is the Firm ’ s only practice .
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