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Dear eb-5attorney, can employee of an existing and operating business be counted into jobs created by this RC?
This is about a hotel eb-5 program currently promoted in China.
The concern is that even before the RC is set up, the project, the hotel was up and running. It is now an eb-5 project. The principal claims that the current employees can be considered as temp workers. With the eb-5 money coming in, they then become full time jobs and can be used for I-829 purpose.
I was concerned about if the USCIS will have the same view two years down the road when investors apply I-829 to remove condition. If USCIS doesn't agree with the principal, then the investors would be in big trouble for their I-829.
What is your opinion?
Note that I am not familiar with the specific hotel RC Program you mention as currently being marketed in China, as there appears to be too many EB-5 projects being marketed in China to follow in detail. You probably are more familiar with the claims being made by various regional centers.
As a general answer to your question, for a direct, individual EB-5 case, existing positions PRIOR to the investment cannot count as new jobs for the purpose of I-829. For a regional center based EB-5 case, you have to review the investment structure as presented to and approved by USCIS and also the specific job calculation methodologies. Obviously, with any regional center based EB-5 project, the more conservative the job calculation estimate, the better it is.
In short, it is very difficult for a layman and even immigration attorneys to understand the implications of the particular investment structure allowed by USCIS for that regional center and job calculation methodology used, unless full access is granted to various types of documents that sometimes only the regional center possesses. Having said this, if I-526 was approved with the same job calculation methodology and the same arguments made by the principal, that probably indicates that USCIS is bound by its determination unless USCIS admits that such approval was made in error.
One bad thing about EB-5 cases is that there are some issues which are unsettled, and basically, all parties to EB-5 cases will be affected by how USCIS decides on these issues. Personally, I don't care as much if USCIS decides to be strict or liberal on these issues, as long as USCIS is aware of the real world and practical consequences and USCIS does not penalize actions already taken when USCIS had not clearly made its position known and therefore, there was no answer to certain issues when the actions were taken.
Appreciate attorney for taking your valuable addressing my concern.
I like what you put that "...if I-526 was approved with the same job calculation methodology and the same arguments made by the principal, that probably indicates that USCIS is bound by its determination unless USCIS admits that such approval was made in error."
I recommended the principal to file an dummy I-526 application and see if USCIS will approve. An approval of this dummy application will be a good indicator of what stand USCIS will have later on regarding the real application. But for the principal, cost and time are their concerns.
Am I right?
I think you are correct in that small EB-5 project will face financial burden to file a dummy application. Here's another problem: Filing all this extra applications and then having to wait very long time to hear on your project is going to basically make it extremely hard for real, bona-fide projects. What I am saying is the procedural delays is going to mount and cause all kinds of problems.
Without additional information, it's difficult to comment on the specific project for which you're describing. However, there are several scenarios in which existing jobs could count.
First, if the business satisfies the 'troubled business' requirement, the preservation of existing jobs can be used in the job-creation analysis.
Second, if the jobs fail to meet the description of fulltime permanent employment (e.g. intermitent, seasonal, temporary, or part time) and the EB-5 investment makes the jobs both full time and permanent.
And finally, the business model used by American Life in Seattle. There, domestic capital was used to initiate the project and shortly thereafter EB-5 capital is added. The job creation from the total project may be allocated to the visa application (Note: the "new commercial enterprise"(e.g. post-1990) must still be met).
But EB-5 attorney is correct: you will know sooner rather than later. The determination will be made at the I-526 stage and will likely apply at the I-829 stage.