Earlier this week, IIUSA submitted comments to the U.S. Citizenship & Immigration Services (USCIS) regarding the recent policy memo announcing the rescission of guidance regarding tenant occupancy methodologies for counting job creation. On May 16, 2018, the EB-5 industry received notice that, as of the day before, May 15, 2018, USCIS no longer considered tenant occupancy to be a reasonable methodology to support valid forecasting tools. Public comment for this change in job creation methodology requirements was open until May 29, only nine business days after the announcement and after the policy already went into effect. The below letter is a result of the hard work of IIUSA members within the public policy committee who spent considerable time to get comments submitted in the short allotted time.
In practical terms, tenant occupancy is a practice that USCIS made too difficult of a process and many Regional Center projects have moved away from its use in calculating job creation in recent years. Requests for evidence (RFEs) from USCIS created lengthy delays for petitions to a point that it was not recommended by many in the industry.
Regardless, the procedures that USCIS used to come to this change are unacceptable. A nine day comment period to a change in job creation requirements – the fundamental requirement for an immigration benefit in the EB-5 Program – to a policy that was implemented retroactively shows a blatant disregard of Administrative Procedure Act requirements and therefore IIUSA was compelled to respond.