EB-5 Update: USCIS Provides Insight into Delayed I-924 Adjudications, Cites “Tenant Occupancy” Methodology

The USCIS Office of Public Engagement issued a statement on February 17, 2012, regarding the internal agency debate over certain economic methodologies that has delayed for many months the adjudication of dozens of I-924 Applications for Regional Center Designation. The statement offers no guidance to applicants with respect to the standards by which the agency’s in-house “experts” have determined they will evaluate the merits of these applications, noting that RFE’s will now be issued to those applicants whose economic methodologies are in question, giving the applicants an opportunity to respond on the record. The issue appears to focus on job projections based on a “tenant occupancy” methodology. The USCIS statement reads as follows:

The “tenant-occupancy” methodology seeks credit for job creation by independent tenant businesses that lease space in buildings developed with EB-5 funding. USCIS continues to recognize that whether it is economically reasonable to attribute such “tenant-occupancy” jobs to the underlying EB-5 commercial real estate project is a fact-specific question. Each case filed will depend on the specific facts presented and the accompanying economic analysis. USCIS is now moving forward with the adjudication of certain pending I-924 Applications For Regional Centers Under the Immigrant Investor Pilot Program that are supported by the “tenant-occupancy” economic methodology.

Our newly-hired economists and business analysts will be bringing expertise to these new adjudications, and requests for evidence will be issued to certain applicants and petitioners to address any questions or issues we have about the economic methodologies employed in their specific cases. Our adjudications will continue to be made on a case-by-case basis and we do not intend to revisit factual findings. I-526 Immigrant Petitions by Alien Entrepreneurs and I-829 Petitions by Entrepreneurs to Remove Conditions will have predictability in connection with early regional center adjudications.

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