EB5 Investors Magazine Volume 2 Issue 1 | Page 44

Count ‘ Em Up

Understanding Strategies for Documenting EB-5 Job Creation by Matthew T . Galati

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 ,
See USCIS “ Policy Memorandum EB-5 Adjudications Policy ,” PM-602-0083 ( May 30 , 2013 ) at 17 . (“ the May 30 Memo ”)
8 C . F . R . § 204.6 ( j )( 4 )( i )
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 .
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 .
8 C . F . R . § 204.6 ( j )( 4 )( iii ).
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