The EB-5 China Market Committee reports a significant shift in the immigration bureau's stance on employment related to the EB-5 program! This change will greatly benefit the expansion and continuation of the regional center program.
In a letter dated December 3, 2010, addressed to Senator Leahy, USCIS Director Mayorkas indicated that the agency would change its long-held position that "indirect and derived employment positions located outside the geographic area of a regional center are not permitted to be counted as employment positions created by that center." For the first time, it allows "indirect positions located outside the geographic area of a regional center to be counted as employment positions created by the project."
This is undoubtedly a favorable decision for the regional center program. In fact, USCIS can more reasonably stipulate that a specific regional center can count employment nationwide as employment created by the project when calculating its job creation. This regulation also reflects the uncertainty between USCIS policy and EB-5 law.
For existing regional center projects, it is still unclear what effect this new policy will have. Existing projects have not included employment outside the geographic area of the regional center when calculating jobs according to the old USCIS regulations (rather than EB-5 law). This may lead to I-829 denials. Whether this regulation can be applied retroactively is uncertain, but regardless, this represents a significant change in USCIS's perspective that benefits regional centers.
The letter begins by clearly stating to Senator Leahy, "You indicated that, contrary to USCIS's existing interpretation, a regional center's business plan can include employment generated outside the geographic boundaries of that center in its total employment count. Based on our verification of immigration law and regulations, we agree that regional centers can rely on employment positions generated outside their geographic boundaries."
The EB-5 China Market Committee is composed of EB-5 experts from the United States and China, who have been tracking and studying changes in EB-5 policy over the long term. They provide feedback from the Chinese market to U.S. regulatory authorities and the EB-5 community, promoting the healthy development of the industry.
