June 17, 2009
USCIS has amended the Adjudicator’s Field Manual relating to job creation. In some cases, the memorandum clarifies ambiguities in the regulations, and in other areas the memorandum establishes new interpretations. The following are the highlights:
1. Whether on an individual or a regional center petition, the I-526 must include a business plan that reasonably demonstrates that the required 10 full-time jobs will be created within the regulatory 2 year period. For the first time, USCIS defines when the 2 years period begins. Based on an assumption that most approved EB-5 petitioners will have achieved their conditional permanent residence within 6 months after the approval, USCIS has decided that the 2 year period commences 6 months after the approval of the EB-5 petition. Therefore, if a project cannot be expected to create all 10 jobs within 2 ½ years of I-526 adjudication, it cannot be approved.
2. For purposes of direct (individual EB-5 cases) and indirect (regional center EB-5 cases) construction jobs, a job that is expected to last at least 2 years may be included as part of the required 10 full-time jobs both at the I-526 and I-829 stages.
3. For purposes of regional center I-526 petitions, it is sufficient if the economic model can conclusively state that indirect jobs will be created within 2 years. However, if that is not possible, and if the economic model relies on certain assumptions regarding infusion of capital or creation of direct jobs to show indirect employment creation, the I-526 petition should demonstrate that the required infusion of capital or creation of the direct jobs will occur within 2 years.
4. Multiple part-time positions and intermittent, temporary, seasonal or transient positions do not count toward the requisite 10 full-time jobs. In addition, independent contractors are not counted.
5. All of the jobs do not have to be created by the time the I-829 conditional removal petition is filed. If they have not yet been created, the adjudicating officer must determine that the jobs are more likely than not going to be created within a reasonable time after the filing of the form I-829 and, if so, approve the petition. The adjudicating officer should consider the reasons that the jobs were not created as predicted in form I-526, the nature of the industry in which the jobs are to be created, when the jobs are expected to be created and any other evidence submitted by the petitioner.
