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EB-5 Insights

Where Government Policies and Business Realities Converge

By Anita E.J. Ninan on Posted in Department of Homeland Security, Immigrant Visa, Immigration, Immigration Law, Proposed Rule, USCIS, Visa

USCIS has proposed rules that could deny entry to non-immigrants seeking admission to the United States and adjustment of status to permanent residence to immigrants if they rely on public benefits for food, housing or medical care, and other forms of public assistance. The proposed rule – “Inadmissibility on Public Charge Grounds” – is published in the Federal Register. The public may comment on the proposed rule during the 60-day comment period ending on Dec. 10, 2018. USCIS will review comments to the proposed rule and then revise and issue a final public charge rule that will include an effective date. In the interim, and until a final rule is in effect, USCIS will continue to apply the current public charge policy.

Pursuant to Section 212(a)(4) of the Immigration and Nationality Act (INA), an individual seeking admission to the United States or seeking to adjust status to permanent resident (obtaining a green card) is inadmissible if the individual “at the time of application for admission or adjustment of status, is likely at any time to become a public charge.”

Under 8 U.S.C. § 1601 (PDF)(1), “Self-sufficiency has been a basic principle of United States immigration law since this country’s earliest immigration statutes.”

Further under 8 U.S.C. § 1601 (PDF)(2)(A), “It continues to be the immigration policy of the United States that aliens within the Nation’s borders not depend on public resources to meet their needs, but rather rely on their own capabilities and the resources of their families, their sponsors, and private organizations.”

While self-sufficiency has been the guiding principle of U.S. immigration law, as indicated in the above federal regulations, “public charge” has not been defined in statute or regulations. According to USCIS, there has been insufficient guidance on how to determine if an alien who is applying for a visa, admission, or adjustment of status is likely at any time to become a public charge. In determining inadmissibility USCIS has used the definition of “public charge” as an individual who is likely to become “primarily dependent on the government for subsistence, as demonstrated by either the receipt of public cash assistance for income maintenance, or institutionalization for long-term care at government expense.” (See, “Field Guidance on Deportability and Inadmissibility on Public Charge Grounds,” 64 FR 28689 (May 26, 1999). In determining whether an alien meets this definition for public charge inadmissibility, USCIS considers several factors, including age, health, family status, assets, resources, financial status, education, and skills. No single factor will determine whether an individual is a public charge.

The proposed rule will apply to foreign nationals seeking admission to the United States on non-immigrant and immigrant visas, as well as those non-immigrants who have availed themselves of public benefits within the United States and are seeking to seeking to either extend their stay or change their status. Under the proposed rule, USCIS would only consider the direct receipt of benefits by the individual alien applicant. Receipt of benefits by dependents and other household members would not be considered in determining whether the alien applicant is likely to become a public charge.

Factors that would generally weigh heavily in favor of a finding that an individual is likely to become a public charge include the following:

  • The individual is not a full-time student and is authorized to work, but cannot demonstrate current employment, has no employment history, or no reasonable prospect of future employment;
  • The individual is currently receiving or is currently certified or approved to receive one or more of the designated public benefits above the threshold;
  • The individual has received one or more of the designated public benefits above the threshold within the 36 months immediately preceding the alien’s application for a visa, admission, or adjustment of status;
  • The individual has been diagnosed with a medical condition that is likely to require extensive medical treatment or institutionalization or that will interfere with the alien’s ability to support himself or herself, attend school, or work, and the alien is uninsured and has no prospect of obtaining private health insurance; or
  • The individual has previously been found inadmissible or deportable based on public charge.

Alternately, factors that would weigh strongly against a finding that a foreign national is likely to become a public charge include:

  • The individual has financial assets, resources, and support of at least 250 percent of the Federal Poverty Guidelines for a household of the alien’s household size; or
  • The individual is authorized to work and is currently employed with an annual income of at least 250 percent of the Federal Poverty Guidelines for a household of the alien’s household size.

This proposed rule could have wide-reaching effects on legal immigration to the United States. The rule proposes not only to define “public charge” and the factors to be considered in making current and prospective public charge determinations, but also to add requirements for “public charge bonds” for certain applicants who are more likely to become a public charge. It is important for interested parties to comment on this proposed rule by the Dec. 10, 2018 deadline.

By Robert Y. Maples on Posted in Continuing Resolution (CR), EB-5, HR 6157

The President today signed H.R. 6157, a bill making Appropriations for Defense and Labor Health and Human Services & Education with a continuing resolution for other government programs not reauthorized by Oct 1. The continuing resolution prevents a government shutdown and extends vital programs, such as the EB-5 immigrant investor program, among others until Dec. 7.

To date, Congress has approved five of 12 appropriations bills. A four-bill minibus is in conference and the balance of three appropriations bills await further action. It is widely believed that additional congressional action will occur after the upcoming mid-term elections in November.

By Nataliya Rymer on Posted in China, Department of State, EB-5, EB-5 Legislation, EB-5 Processing Times, EB-5 Program, Green Cards, I-526, Immigrant Green Card, Immigrant Investor, Immigration, Immigration Law, State Department, USCIS, Vietnamese, Visa

This coming October, USCIS is allowing a number of foreign nationals to apply for adjustment of status earlier than they would otherwise be eligible. Specifically, USCIS has announced that it will allow individuals with immigrant petitions in employment-based categories to apply for adjustment of status based on the cutoff dates in the “Dates for Filing” Chart of the State Department’s monthly Visa Bulletin (Chart B).

As a reminder, in October of 2015, the State Department made a change with respect to its monthly visa bulletin – it added a chart with a set of often earlier cutoff dates it called “Dates for Filing.” The “Application Final Action Dates” chart (Chart A) has continued to reflect the dates on which visa numbers are actually available for the approval of adjustment of status or immigrant visa applications. Chart B, on the other hand, was instituted to reflect an earlier set of cutoff dates which the State Department has historically used to begin initiating the immigrant visa cases. Since implementation, and when allowed by USCIS subject to monthly determinations, Chart B cutoff dates have provided individuals in the U.S. with valid nonimmigrant status the opportunity to file their adjustment of status applications prior to the date immigrant visas were available for approval, which in turn has given these individuals the opportunity to remain in the U.S. as green card applicants and obtain related benefits such as employment and travel authorization.

Since implementation of this change in October 2015, USCIS has only allowed on very limited occasions for employment-based applicants to utilize Chart B for the filing of their adjustment of status applications. Historically, as their number is far fewer, family-based applicants have been able to take advantage of these earlier dates, while the employment-based applicants have continued to rely on the cutoff dates in Chart A for their filings. Therefore, this announcement constitutes a rare opportunity for employment-based applicants to file their green card applications earlier, and in some cases significantly earlier, than anticipated. Specifically, the October Dates for Filing chart provides the following cut-off dates:

 

Mainland China-born EB-5 investors in the U.S. in lawful temporary visa status can file adjustment of status applications if the priority date of their approved I-526 petition is earlier than Oct. 1, 2014. The Chart B cutoff date is over a month later than the Aug. 15, 2014 cutoff date in Chart A, which extends the benefit of being able to file their green card application to a significant additional number of approved EB-5 Chinese investors. Furthermore, for Vietnamese-born EB-5 investors, Chart B for October is current, which means that all those Vietnamese investors and dependents with approved I-526 petitions who are in the U.S. in valid temporary visa status, regardless of the priority date of their petition, can file their green card applications in the month of October.

Importantly, applications for green cards filed pursuant to Chart B do not secure protection under Child Status Protection Act (CSPA), the application of which continues to be determined based on Chart A – the availability of immigrant visas for final adjudication/approval. In addition, important considerations for filing exist for individuals in certain visa statuses in the U.S. For details, please contact your GT attorney.

By Robert Y. Maples on Posted in Continuing Resolution (CR), EB-5, EB-5 Immigrant Investor Program

Yesterday, by a bipartisan vote of 93-7, the U.S. Senate passed H.R. 6157, making appropriations for the Department of Defense and Labor, Health and Human Services, Education and related agencies and providing for continuing appropriations until Dec. 7 for other programs, including EB-5 immigrant investor program extension.  

This appropriations package funds the two largest segments of the U.S. budget, which are among the top priorities for annual funding. The inclusion of the Continuing Resolution in this strategic and important legislative package helps to ensure consideration and passage before appropriations lapse on Sept. 30. 

The House is expected to take up the Senate-passed legislation next week upon their return from break. 

 

By Greenberg Traurig on Posted in EB-5, EB-5 Immigrant Investor Program, EB-5 Legislation, I-829, Immigrant Investor, Immigrant Visa, Immigration, Immigration Law, Immigration Reform, President Trump's Administration, USCIS, Visa

This is the fifth post in a series that discusses how EB-5 investors and their dependents can maintain eligibility for permanent residence and I-829 Petition approval. This blog focuses on accepting certain public benefits that may make an investor and/or his or her dependents a “public charge.”

The Trump Administration has stated that USCIS will start deportation proceedings for any conditional permanent resident or lawful permanent resident who has abused any program related to receipt of public benefits. Additionally, conditional permanent residents and lawful permanent residents alike cannot be a “public charge.” This means an individual who is likely to become primarily dependent on the government for subsistence, as demonstrated by either the receipt of public cash assistance for income maintenance or institutionalization for long-term care at the government’s expense.

USCIS can make a “public charge” finding at the time of the immigrant visa interview for the conditional green card and at the I-829 Petition interview. A finding that the investor or a family member is a “public charge” can lead to denial of the immigrant visa or the I-829 Petition, and commencement of deportation proceedings following the I-829 Petition denial.

Acceptance of the following types of assistance may lead to the determination that the individual is likely to become a public charge:

  • Supplemental Security Income (SSI) under Title XVI of Social Security Act;
  • Temporary Assistance for Needy Families (TANF) cash assistance (part A of Title IV of the Social Security Act–the successor to the AFDC program);
  • State and local cash assistance programs that provide benefits for income maintenance (often called “General Assistance” programs); and
  • Programs (including Medicaid) supporting individuals who are institutionalized for long-term care (e.g., in a nursing home or mental health institution).

Under current USCIS guidance, non-cash benefits (other than institutionalization for long-term care) are generally not taken into account for purposes of a public charge determination. Non-cash or special-purpose cash benefits are generally supplemental in nature and do not make a person primarily dependent on the government for subsistence. Therefore, past, current, or future receipt of these benefits do not impact a public charge determination at present. Non-cash or special purpose cash benefits that are not considered for public charge purposes include:

  • Medicaid and other health insurance and health services (including public assistance for immunizations and for testing and treatment of symptoms of communicable diseases; use of health clinics, short-term rehabilitation services, and emergency medical services) other than support for long-term institutional care;
  • Children’s Health Insurance Program (CHIP);
  • Nutrition programs, including Food Stamps, the Special Supplemental Nutrition Program for Women, Infants and Children (WIC), the National School Lunch and School Breakfast Program, and other supplementary and emergency food assistance programs;
  • Housing benefits;
  • Child care services;
  • Energy assistance, such as the Low Income Home Energy Assistance Program (LIHEAP);
  • Emergency disaster relief;
  • Foster care and adoption assistance;
  • Educational assistance (such as attending public school), including benefits under the Head Start Act and aid for elementary, secondary, or higher education;
  • Job training programs; and
  • In-kind, community-based programs, services, or assistance (such as soup kitchens, crisis counseling and intervention, and short-term shelter).

The Trump Administration is attempting to expand the list of government benefits that could lead to a public charge finding. Specifically, the administration may expand list of “public charge” benefits to include Medicaid, subsidized Obamacare, food stamps, tax credits, or other non-cash government benefits. If an EB-5 investor and/or his or her dependents receive any of these benefits, and then the administration adds those benefits to the list of “public charge” benefits, USCIS may seek to deny the I-829 Petition. As such, EB-5 investors and their family members should try to avoid receiving these benefits following the grant of CPR status. Insurance paid for in the marketplace under the Affordable Healthcare Act should not result in a public charge finding.

By Jennifer Hermansky on Posted in EB-5, EB-5 Immigrant Investor Program, EB-5 Legislation, Immigrant Investor, Immigrant Visa, Immigration, Immigration Law, Immigration Reform, President Trump's Administration, Tax Considerations, Visa

This is the fourth post in a series that discusses how EB-5 investors and their dependents can maintain eligibility for permanent residence and I-829 Petition approval. This blog focuses on criminal issues and tax issues.

President Trump’s Executive Order, along with a Department of Homeland Security (DHS) implementation memorandum, prioritizes removable aliens who:

  • Have been convicted of any criminal offense;
  • Have been charged with any criminal offense that has not been resolved; and
  • Have committed acts that constitute a chargeable criminal offense.

Importantly, a criminal conviction is not required for USCIS to start the deportation process for an EB-5 investor or any of his or her dependent family members. Any CPR who has been arrested anywhere in the world for any infraction should reach out to his or her immigration attorney to determine the best course of action.

EB-5 investors and their dependents should disclose to their attorney all arrests and encounters with law enforcement. Even if previous visa applications have been approved in the past, or if an arrest or conviction occurred a very long time ago or for a very minor infraction, such arrest can lead to the initiation of deportation proceedings in the U.S. Failure to disclose arrests or convictions can lead to an I-829 Petition denial and the start of deportation proceedings.

Finally, conditional permanent residents and permanent residents alike are subject to the U.S. tax rules, and may be considered a “resident” for tax purposes if he or she is maintaining her permanent residence in the U.S. as outlined in our previous blog, including being physically present in the U.S. for more than six months a year. Failure to file tax returns as a “resident” of the U.S. when an investor and/or his or her dependents are required to do so could result in the denial of an I-829 Petition. The EB-5 investor can contact his or her accountant for more information.

By Jennifer Hermansky on Posted in EB-5, EB-5 Immigrant Investor Program, EB-5 Legislation, EB-5 Program, Immigrant Investor, Immigration, Immigration Law, Immigration Reform, President Trump's Administration, U.S. Customs and Border Protections, USCIS

As we previously reported, U.S. Citizenship and Immigration Services (USCIS) issued a Policy Memorandum entitled “Updated Guidance for the Referral of Cases and Issuance of Notices to Appear (NTAs) in Cases Involving Inadmissible and Deportable Aliens”[1] on June 28, 2018.  This Policy Memorandum was issued in response to President Trump’s Executive Order (EO), “Enhancing Public Safety in the Interior of the United States.” One of the priorities listed in the EO is to remove aliens from the United States where necessary, including those aliens who are deportable or inadmissible, with no exceptions. USCIS has the authority to file a Notice to Appear to start deportation proceeds against EB-5 investors who have already achieved conditional permanent residence in several instances:

  1. There has been a termination of conditional permanent resident status;
  2. There is fraud, misrepresentation, and abuse of public benefit programs; and
  3. There is a conviction for a crime, or even an arrest for a criminal offense where the case has not yet been resolved.

This is a third post in a series that discusses how EB-5 investors and their dependents can maintain eligibility for permanent residence and I-829 Petition approval. This blog focuses on termination of permanent resident status.

An EB-5 investor who has been granted the two-year conditional green card should take steps to protect his or her conditional permanent resident (CPR) status. Spending significant amounts of time outside the U.S. is a serious problem for any permanent resident, including EB-5 investors.  Absences of more than six (6) months from the U.S. can lead to extensive questioning at the airport or point of entry to the U.S. by U.S. Customs and Border Protection (CBP). The CBP officer can determine at the airport that the investor abandoned his or her CPR status. Absences of more than one (1) year may likely result in a finding at the point of entry that the CPR abandoned his or her status.

Additionally, a pattern of trips where the CPR spends significant amounts of time outside the U.S. and only takes short trips into the U.S. could lead to a finding of abandonment. Finally, each member of the EB-5 investor’s family is responsible for protecting his or her own CPR status; each family member must individually meet the residence requirements to avoid abandonment of the green card.

EB-5 investors and their dependent family members should consider the following:

  • Spend as much time as possible physically present in the U.S. Generally, permanent residents of the U.S. should be spending at least six (6) months a year in the U.S. This time can be cumulative; it does not need to be in just one entry to the U.S.
  • If it is not possible to spend six (6) months a year in the U.S., consider obtaining a re-entry permit from USCIS. A re-entry permit is advanced permission to spend longer periods of time outside the U.S. Contact your immigration attorney to understand more about this process.
  • Maintain a residence in the U.S. This can be through the purchase of a home or renting an apartment. Utilities in the investor’s name can also help, as does car ownership.
  • Maintain bank accounts, credit cards, and investments in the U.S. to show financial ties.
  • Maintain insurance in the U.S., including home, health, and life insurance.

CPR investors and their dependent family members should consider carrying with them evidence of their ties to the U.S. after an extended absence abroad in case he or she is questioned at the airport regarding their absence from the U.S.

Additionally, the Trump Administration has stated that it intends to interview all applicants for green cards, which would include EB-5 investors and their family members applying for permanent green cards on Form I-829. During any I-829 Petition interview conducted by USCIS, the officer can ask the EB-5 investor and his or her dependents about their residency in the U.S. and their travel history during the two years of conditional residency. Extended absences from the U.S. and lack of ties to the U.S. could result in a denial of Form I-829.

In order for dependent family members to remain protected, EB-5 investors must maintain their CPR status. If the EB-5 investor is found to have abandoned his or her residency in the U.S., the dependent family members have no basis to file Form I-829 without the investor, even if the dependents are living full-time in the U.S.

[1] As it is issued in accompaniment to the Presidential Executive Order, this Policy Memorandum is assumed to go into effect immediately upon publication.

By Jennifer Hermansky on Posted in EB-5, EB-5 Immigrant Investor Program, I-526, Immigrant Investor, Immigrant Visa, Immigration, Immigration Law, President Trump's Administration, USCIS

EB-5 investors should maintain their eligibility for conditional permanent resident status, especially during any period of visa backlog occurring in between the time of I-526 Petition approval and when the investor’s priority date becomes current.

This is the second post in a series that discusses how EB-5 investors and their dependents can maintain eligibility for permanent residence. This post focuses on criminal issues and material misrepresentations on visa applications.

Criminal Issues

President Trump’s Executive Order, along with a Department of Homeland Security (DHS) implementation memorandum, prioritizes removable aliens who:

  • Have been convicted of any criminal offense;
  • Have been charged with any criminal offense that has not been resolved; and
  • Have committed acts that constitute a chargeable criminal offense.

Importantly, a criminal conviction is not required for USCIS to start the deportation process for an EB-5 investor or any of his or her dependent family members. Additionally, any arrest or conviction that occurs during any period of visa backlog, during or after I-526 Petition approval, while the investor and dependents are waiting for the immigrant visa interview, can impact the issuance of the immigrant visa by the U.S. Consulate or the approval of Form I-485 by USCIS. Any investor or their dependent who has been arrested anywhere in the world for any infraction should reach out to his or her immigration attorney to determine the best course of action.

EB-5 investors and their dependents should disclose to their attorney all arrests and encounters with law enforcement. Even if previous visa applications have been approved in the past, or if an arrest or conviction occurred a very long time ago or for a very minor infraction, such arrest can lead to the initiation of deportation proceedings in the U.S. Failure to disclose arrests or convictions can lead to an immigrant visa denial, a Form I-485 denial, or a Form I-829 Petition denial, and the start of deportation proceedings.

Misrepresentations on Visa Applications

A material misrepresentation or fraud on a visa application is a bar to entry to the U.S. on a nonimmigrant visa or a green card. It is very difficult to overcome a finding of material misrepresentation and only very limited waivers are available.

Any visa applications filed by the EB-5 investor or the dependent family members must be filed accurately and with truthful information, including nonimmigrant visa applications. An EB-5 investor with a pending or approved I-526 Petition should consider the following:

  1. Disclose the pending or approved Form I-526 on any DS-160 Application for a nonimmigrant visa, including visitor visas;
  2. Disclose all arrests and convictions on a visa application, regardless of how much time has passed since the commission of the crime or however insignificant the infraction, and even if the conviction was later removed from his or her record; and
  3. Answer employment, academic, and residency history questions consistently with the Form I-526 Petition filed on his or her behalf.

Importantly, obtaining a B visitor visa to give birth to a child in the U.S. can be used as a basis to deny the green card at the immigrant visa interview by the U.S. Consulate. Also, enrolling children in school in the U.S. on a B visa can result in a finding of permanent ineligibility on the part of the parent.

By Jennifer Hermansky on Posted in EB-5, EB-5 Immigrant Investor Program, EB-5 Legislation, EB-5 Program, Eb-5 Regional Center, I-526, Immigration, Immigration Law, USCIS

On Aug. 24, 2018, U.S. Citizenship and Immigration Services (USCIS) made a significant update to its Policy Manual, Part G: Immigrant Investors. In its Policy Alert, USCIS outlined the changes to the Policy Manual. Notable among the updates was the following:

Policy Highlight 5

Explains that USCIS considers a change in regional center affiliation a material change in cases where the change takes place after Form I-526 has been filed.

This is the first time USCIS has stated in writing that such a change in regional center sponsorship is considered a “material change.”  The impact on investors and projects could be significant:  a material change post I-526 Petition filing but before the investor is granted conditional permanent residence requires the filing of a new I-526 Petition.  For the following reasons, investors must carefully consider the potential consequences of this change:

  1. If an investor is subject to a visa backlog, the priority date (the date the I-526 Petition is received at USCIS) is critical to determining the length of time an investor will wait to achieve permanent residence.  For investors born in Mainland China and Vietnam, which are currently subject to visa backlogs, it can significantly increase the wait time if a new I-526 Petition is required.
  2. If an investor must refile his or her I-526 Petition, and he or she has a child that has reached the age of 21, that child can no longer immigrate with the family.
  3. Even if the investor is not subject to a visa backlog, it could significantly increase the wait time to come to the U.S. as a conditional permanent resident.
  4. If the regional center sponsoring the project has its designation terminated by USCIS, the investors may be innocent bystanders who may nonetheless be penalized by USCIS for failures on the part of the regional center.

The regulations at 8 CFR 204.5(j) require an immigrant investor to establish the following facts for I-526 petition approval:

  1. A new commercial enterprise has been established by the petitioner in the United States;
  2. Petitioner has placed the required amount of capital at risk for the purpose of generating a return on the capital placed at risk;
  3. Petitioner has invested, or is actively in the process of investing, capital obtained through lawful means;
  4. The new commercial enterprise will create not fewer than ten (10) full-time positions for qualifying employees.  To show that the new commercial enterprise located within a regional center approved for participation in the Immigrant Investor Pilot Program meets the statutory employment creation requirement, the petition must be accompanied by evidence that the investment will create full-time positions for not fewer than 10 persons either directly or indirectly through revenues generated from increased exports resulting from the Pilot Program. Such evidence may be demonstrated by reasonable methodologies including those set forth in paragraph (m)(3) of [Section 204.6]; and
  5. The petitioner will be engaged in the management of the new commercial enterprise, either through the exercise of day-to-day managerial control or through policy formulation.

Sponsorship of one regional center or another does not affect the approvability of a petition under 8 CFR 204.5(j)(1), (3), and (5).  Generally, the location of the new commercial enterprise (NCE) is not material to the adjudication of the I-526 petition in the case of regional center sponsorship, as the job creating entity (the JCE) and EB-5 project itself must be located within the boundaries of a regional center.  The only exception to this is if the NCE and the JCE are the same entity, in which case the NCE must be located within the boundaries of an approved regional center.  Assuming that the same NCE is legally in existence in the United States, the petitioner has invested capital obtained through lawful means, and the petitioner is engaged in the management of the NCE, then he or she meets the requirements of the regulations at 8 CFR 204.5(j)(1), (3), and (5), irrespective of which regional center is sponsoring the NCE.

The investor also must show that he or she has placed the required amount of capital at risk for the purpose of generating a return.  Matter of Izummi requires that if the NCE is a holding company, the full requisite amount of capital must be made available to the business(es) (i.e., JCE) most closely responsible for creating the employment on which the petition is based to meet the “at risk” capital investment requirement.  If the JCE is located within the boundary of a regional center approved by USCIS, then the immigrant investor meets the requirement of 8 CFR 204.5(j)(2) pursuant to Matter of Izummi.  If a new regional center, previously designated by USCIS and in good standing, becomes the new sponsor of an NCE, and the project is located within its approved geographic area, such a change cannot be considered to naturally affect the decision, and thus, cannot be found material to the adjudication.

Finally, under 8 CFR 204.5(j)(4), the investor also must show that the investment will create full-time positions for not fewer than 10 persons either directly or indirectly through revenues generated from increased exports resulting from the Pilot Program.  If a new regional center sponsors an NCE and that new regional center was designated previously by USCIS to cover the geographic area of the JCE and the project, then petitioner meets the standard outlined in Matter of Izummi, which requires the JCE to be located within the boundaries of a regional center.

Importantly, nothing in the regulations or the Policy Manual require all job creation to exist within the boundaries of the regional center, and this is established USCIS policy.  The statute states that visas shall be made available to qualified immigrants seeking to enter the U.S. for the purpose of engaging in a new commercial enterprise “which will benefit the United States economy and create full-time employment for not fewer than 10 U.S. citizens or aliens lawfully admitted permanent residents…” 8 USC §1153(b)(5)(A)(ii). Moreover, 8 CFR §204.6(j)(4)(iii) states that an NCE located within a regional center can show that it meets the statutory employment creation requirement by including evidence that the “investment will create full-time positions for not fewer than 10 persons either directly or indirectly through revenues generated from increased exports resulting from the pilot program.” Nothing in this regulation limits the job creation to the bounds of the regional center, so the boundaries of the regional center are not necessarily material to the adjudication of the petition under the instant regulation.  This is repeated in the Policy Manual, which states that “[i]ndirect jobs can qualify and be counted as jobs attributable to a new commercial enterprise associated with a regional center, based on reasonable methodologies, even if the jobs are located outside of the geographic boundaries of a regional center.”

Moreover, nothing in the regulations or the Policy Manual require that the modeled geographic area be exactly the same as the designated area of the sponsoring regional center; instead, USCIS reviews the economic methodology on a standard outlined in the Policy Manual.  Assuming the location of the project has not changed, and the project is located within the previously-approved boundaries of the new regional center, then USCIS must simply determine whether the economic model uses an area with a reasonable demographic structure, the area’s contribution to supply chains of the project, and the connectivity with respect to socioeconomic variables in the area.  Slight changes in regional center boundaries do not necessarily affect the adjudication of the petition.  To the contrary, USCIS must review the geographic area of the impact study separately from the geographic boundaries of the regional center pursuant to its own guidance using demographics, supply chains, and socioeconomic variables.  Therefore, a change in regional center where the new regional center’s geographic area covers the area of the JCE and project cannot be considered to naturally affect the decision, and thus, cannot be found material to the adjudication.

Should a new regional center sponsor an NCE, and the JCE and the project are located within the boundaries of the new regional center, then the eligibility criteria are not impacted for I-526 Petition approval.

A case-by-case analysis of the facts to determine whether a material change has occurred is more pragmatic and fair to EB-5 petitioners, NCEs, JCEs, and regional centers alike.

USCIS updated the Policy Manual previously to state that termination of a regional center following the issuance of conditional permanent residence is not fatal to an I-829 Petition, and that investors can continue to rely on indirect job creation.  Therefore, investors who have entered the United States on the two-year green card, and thereafter the regional center is terminated by USCIS, may still be able to rely on indirect job creation for I-829 Petition approval.