Last week, I travelled to the Bahamas to speak at the American Immigration Lawyers Association’s EB-5 conference.  Without a doubt, USCIS’ change in position regarding the ability of regional centers to count jobs generated from tenants was a concern for many stakeholders in attendance and was addressed during numerous conference panels.  The new stance on the tenant occupancy economic methodology has put into jeopardy many regional center real estate development projects that seek credit for job creation by tenant businesses that lease space in the project.  It has created a significant element of risk for many existing regional centers and for many individual applicants with pending I-526 and I-829 petitions.  Moreover, many investors now fear that investing in commercial real estate projects may not result in the job creation required to obtain their green cards.  Given this uncertainty, some investors may also reconsider investment in the U.S., the stated goal of Congress in passing the EB-5 program.

Many stakeholders, including the Association to Invest in the USA (IIUSA) and the American Immigration Lawyers Association (AILA), have expressed their concerns regarding the uncertainty that both regional centers and investors will face in the EB-5 program as a result of the USCIS change in policy by penning letters to the USCIS.  It appears that USCIS has heard the complaints.  Earlier this week, USCIS announced that Director Mayorkas would be holding an in-person and telephonic conversation with stakeholders on the tenant occupancy economic model.  For those who wish to listen in, please see instructions here to RSVP for the invite.

Since taking office, Director Mayorkas has been committed to engaging with stakeholders, particularly with respect to the EB-5 program.  I sincerely hope that he will consider the adverse impact that this change in policy has had to date and will continue to have on regional centers, investors and communities across the country relying on the jobs created by the construction of these projects, and urge USCIS to rescind the memorandum on tenant occupancy.