As confirmed by USCIS in the most comprehensive policy memorandum to date 1,“ the centerpiece of the EB-5 program is the creation of jobs.” This stipulation is so important to the program that regional centers must demonstrate the attribution of 10 fulltime, qualifying jobs to each EB-5 investor in order to establish a compliant business plan and launch a project. 2 The need to satisfy the burden of proof at the time of filing Form I-829— requiring evidence that the requisite jobs were created or can be expected to be created within a reasonable period of time— gives investors anxiety. 3 A failure to prove job creation may result in the initiation of removal proceedings, so ensuring that job creation is met and documented is of paramount concern. As we enter 2014, many regional centers will be approaching the I-829 process for the first time, given that most regional centers were established in recent years. 4 Therefore, all stakeholders in a given project need to be constantly vigilant of the ultimate requirements to generate and document sufficient job creation.

The regional center and indirect job creation

EB-5 Regional Center-based I-526 petitions have constituted the overwhelming majority of filings, given their ability to leverage indirect jobs. Projecting indirect EB-5 job creation in a regional center filing requires 5 the use of“ reasonable methodologies,” which almost universally necessitates a report by an economist to quantify the economic impacts of the investors’ activities. EB-5 economists’ use of input / output modeling dominates the field. Four particular models have emerged and won general acceptance by USCIS: Regional Economic Models,

1

See USCIS“ Policy Memorandum EB-5 Adjudications Policy,” PM-602-0083( May 30, 2013) at 17.(“ the May 30 Memo”)

2

8 C. F. R. § 204.6( j)( 4)( i)

3

8 CFR 216.6( a)( 4)( iv). In the May 30 memorandum, USCIS clarified what is a“ reasonable period of time” in the I-829 context:“ Because the law contemplates two years as the baseline expected period in which job creation will take place, jobs that will be created within a year of the twoyear anniversary of the alien’ s admission as a conditional permanent resident or adjustment to conditional permanent resident may generally be considered to be created within a reasonable period of time. Jobs projected to be created beyond that time horizon usually will not be considered to be created within a reasonable time, unless extreme circumstances, such as force majeure, are presented.“ Id. at 22.

4

An investor may take four to five years to reach the I-829 filing stage due to the processing times for I-526s, the time it takes to obtain an immigrant visa and relocate to the United States, and the time period of conditional residency.

5

8 C. F. R. § 204.6( j)( 4)( iii).

42 EB5 Investors Magazine