You are here[HOT] USCIS letter taking formal position on whether direct construction jobs can count!
[HOT] USCIS letter taking formal position on whether direct construction jobs can count!
* We find it curious that USCIS was apparently willing to reverse a precedent decision governing the below EB-5 issue. Now, this reversal flies in the face of its often-repeated statement that "we must comply with the established EB-5 statutes, regulations and precedent decisions." This reversal shows that USCIS can and does often change the EB-5 law, so USCIS should stop hiding behind the so-called "established" law. In fact, there were many instances where USCIS reversed various aspects of the EB-5 law which everyone thought was very well-established.
In 2009, USCIS issued a response letter (see attached below) to Senator Cornyn's inquiry/request regarding how, if any, direct, construction jobs are counted for I-829 purpose. [Note that USCIS has already stated that indirect and induced jobs arising from construction activities can count.] When USCIS answers in negative even an influential Senator's inquiry/request, it's hard to imagine that USCIS will be swayed by any other efforts, from AILA or any other groups. Actually, this might provide even more ammunition to those arguing that EB-5 law should be amended statutorily.
However, as we anticipated, USCIS response letter stated in unequivocal terms that direct construction-related jobs will count for I-829 purpose only if these positions are maintained for 2 years + period, which includes CPR period and I-829 pending period of time. [If USCIS takes 1 year to adjudicate I-829s, they can, through delay, in effect make any direct construction jobs not count.] Practically, this means construction jobs will very rarely be able to be counted as direct jobs, because the construction jobs, by their very nature, are intermittent and almost are never maintained for two (2) year + period. I guess you can add up 3 or 4 people who have worked in the same job position (same job duties) for a prolonged period of time and come up with one single construction job.
At any event, I personally don't see how USCIS could have taken any other position on this issue: the nature of construction jobs make it almost impossible to be counted as direct jobs. For this reason, I really don't think you can blame USCIS for taking this position.
At least, the letter also specifically states that indirect/induced construction jobs will count. In the world of EB-5, "unseen" jobs are deemed more reliable than the jobs actually seen, although difficult to evidence. It appears that RCs need to hire "economist magicians" to get the EB-5 Programs going.
I agree with you. I have never found out who used the language from the K-1 visa program and established a two-year timeframe within which to create the 10 jobs in order to remove conditions. It's just insane.
We also believe that for the EB-5 Program to really take off, the investment structure has to be changed to give "permanent" green cards (not conditional green cards) upon approval of I-526 petitions, at least for Regional Center EB-5 cases. This is because USCIS can audit the RC Programs time to time for comliance, and the RC Programs do have something to lose (namely, their RC designations), so that they will conform to the EB-5 requirements. The only argument against giving permanent green cards to bona-fide investors and their family members is that they will receive back their investment right after they get their permanent green cards, but RC Programs will comply with the time period required by USCIS during which the investment must be maintained. Give permanent green cards right away after the approval of I-526 petitions, and then set a minimum number of years (4 or 5 years) during which the investments must be maintained. I have no idea why anyone would disagree with this proposal. My guess is that if this proposal became effective, it would encourage even more risky projects. Once the investors obtain permanent green cards, they really do not mind taking some risks to get higher returns. However, these investors cannot afford to take too much risks when they have not even received permanent green cards.
In the meantime, before the above change is made, if USCIS ajudicates I-829s within 3 months period from the submission of I-829 -- which is mandated by the EB-5 regulation -- only then, investors should be required to meet the EB-5 regulations. I believe AILA should bring a class action based on this EB-5 regulation.