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USCIS has caused a great deal of confusion surrounding construction jobs, mainly because USCIS is not sticking with its own definition of direct vs indirect jobs. In practice, it is almost impossible for any construction jobs to be deemed as "direct" jobs per EB-5 law. Think about it: Under the EB-5 law, "direct" jobs are only those jobs directly employed by the NCE or JCE, but most, if not all, construction jobs are hired by general contractors or sub-contractors. This means all construction jobs are indirect jobs under the EB-5 law. Therefore, under the EB-5 law, it's logically flawed to count any construction jobs as "direct" jobs. However, in our opinion, USCIS seems to be very confused on this issue.
2013/07/03 -- USCIS Policy Guidances governing AAO Precedent/Non-Precedent Decisions and Certification
Interim Policy Memorandum: PM-602-0086 Precedent and Non-Precedent Decisions of the Administrative Appeals Office (AAO)
Note: The above memorandum is interim guidance and therefore effective immediately.
Final date for comments: July 17, 2013
Final Policy Memorandum: PM-602-0087 Certification of Decisions to the Administrative Appeals Office (AAO)
Not very good news. I guess the end of fiscal year means October 30, 2013. Don't know the exact implications of this new, unexpected development in the EB-5 area.
Some issues are:
1. Will BEA changed its mind?
2. How long until RIMS II multipliers become outdated so that USCIS will not find them acceptable?
3. How does this affect job estimates, especially construction jobs?
I was going to write a long article on this topic, but since there are already many articles written on this issue by EB-5 economists, I thought I would just provide a link to one of these articles:
The above article seems to be easy to understand and practical.
The report commissioned by USCIS and USCIS response to the independent report appear below.
I wonder if the 99.5% approved cases include those cases which are withdrawn or given up? No way there is 99.5% approval rate in EB-5 context.
Finally . . .
Still, many of the EB-5 remain and are left unaddressed.
Contained info on the new EB-5 Program Office transition status.
California is now allowing a special "third-step" option of qualifying census tracts (by combining 12 or fewer contiguous census tracts), in addition to the pre-approved areas composed of counties, cities, MSAs and CDPs.
Now, what I don't understand is the content of the recommended EDC Template Letter which contains the language stating that the signing entity "concur that the project will draw employment from the list of contiguous Census Tracts provided." I guess this is not problematic since this language can be read as saying the project will draw employment from the regional center geographic area which contains the area carved out by the attached contiguous Census Tracts.
Another Ombudsman sponsored meeting on EB-5 issues and problems. What's new. Read this if you want to hear complaints that do not get solved. Folks, USCIS and everyone know what the problems are; the real issue is the willingness to execute.
USCIS issued on Feb. 14, 2013 an updated draft for further comments. See:
Dear USCIS Stakeholders,
U.S. Citizenship and Immigration Services (USCIS) is continually focused on enhancing its administration of the EB-5 program. As part of our efforts we have undertaken an iterative policy development process which includes the posting of a draft EB-5 policy memorandum for public comment. We would like to thank stakeholders for providing comments on previously posted versions of the EB-5 memorandum.