Tenant Occupancy Guidance of May 8, 2012 with my comments
U.S. Citizenship and Immigration Services Office of the Director (MS 2000) Washington, D.C. 20529-2000 OG-602.06-001 PM-602-XXXXMay 8, 2012Operational GuidanceSUBJECT: Guidance on EB-5 Adjudications Involving the Tenant-Occupancy MethodologyOur agency has established guidance regarding the deference we should give to prioradjudications. This guidance is set forth in many of our policy memoranda, including in ourDecember 11, 2009 policy memorandum and AFM update regarding the EB-5 program. Ourdeference policy provides generally that a prior favorable decision will be relied upon in laterproceedings unless the facts underlying the prior decision have materially changed, there isevidence of fraud or misrepresentation in the record of proceedings, or the previously favorabledecision is determined to be legally deficient.Recently, the question has arisen how our agency’s practice of giving deference to prioradjudications should be implemented in an EB-5 case in which the petitioner has used the“tenant-occupancy” economic methodology to prove the required creation of U.S. jobs. Thisguidance answers that question.A decision on the economic methodology presented in an EB-5 case is a very fact-specific andfact-dependent one. Consistent with our deference policy, ISOs should rely on a previousdetermination that the economic methodology is reasonable when the methodology is presentedto us in a later proceeding based on materially similar facts. For example: If we approved a Form I-924 regional center application based on a specifically identified project, including the specific location and industry involved, we will not revisit the determination that the economic model and underlying business plan were reasonable when adjudicating related Form I-526 petitions, Form I-485 applications, or Form I-829 petitions. If we approved a Form I-526 petition for an immigrant investor based on a specifically identified project not associated with a regional center, we will not revisit the
OG-602.06-001: Guidance on EB-5 Adjudications Involving the Tenant-OccupancyMethodologyPage 2 determination that the business plan was reasonable when adjudicating the investor’s related Form I-485 application or Form I-829 petition.If, however, the facts underlying application of the economic methodology have materiallychanged, then we will conduct a fresh review of the new facts to determine whether thepetitioner or applicant has complied with the requirements of the EB-5 program, including thejob creation requirement.Here is my take on this:___________________________________________________________________The option to revisit the EA and underlying methodology in a Regional Centeraffiliated case is triggered by changes during implementation of the BP that altereddata input which occurred after the prior determination on reasonableness or jobcreation projections. If a BP is implemented essentially as predicted there is no needto revisit the EA or job creation projections.___________________________________________________________________The option to revisit the BP in a Regional Center affiliated case is triggered by theplan as effectuated and as presented via the evidence submitted with the I-829s ofthe EB-5 investors.___________________________________________________________________USCIS should consider an Exemplar I-829 as an I-924 Amendment when there hasbeen a substantial material change in plans from the earlier determination either inthe initial or last amended I-924, or in an Exemplar I-526 (as an I-924 Amendment).___________________________________________________________________The option to revisit the BP in a stand-alone investors I-829 depends on the actualresults of the entrepreneurs efforts. This could have a bearing on the "within areasonable period of time" analysis and/or giving USCIS a reason (and process) todelay and drag out a decision when it would result in an approval and the lifting ofconditions.