Saturday, July 23, 2011

More fuzzy thinking, courtesy of USCIS HQ

During the last EB-5 stakeholders call, USCIS HQ issued a Q&A that contained this gem, twice:

Q. If jobs are created on an indefinite full-time basis and then lost (such as by downturn of the business) after all EB-5 capital has been plowed into the business, but before the end of CPR status, can they be counted?

A. Jobs created as a result of the EB-5 investment must be maintained through the entire two-year period of conditional permanent residence. INA 216A(d) and 8 CFR 216.6(c)(iv).

Q. If jobs must last to the end of CPR, what is the critical moment: filing of I-829 (which might precede end of two years of CPR by up to 90 days), end of CPR (two years), or approval of I-829?

A. The job created as a result of the EB-5 investment must be maintained through the entire period of conditional residence. The conditional residence ends when the conditions are removed, at the time of approval of the I-829.

Who knows when jobs will be created or lost? Conditions change, the economy falters, growth is slow. Some EB-5 new commercial enterprises go forward without full funding. Some don't. Some go forward but cannot afford to hire enough workers to have 10 workers for each investor at their individual I-829 petition stage or maybe all 10 workers were not on the job during the investor's two-year conditional residence period, but are on the job when the investor's I-829 petition is filed.

How is it in the interests of USCIS to deny the investor's I-829 petition because all 10 jobs did not exist at the time the investor entered the United States or adjusted status if in the United States. That's an arbitrary date that the investor has little, if any, control over. And, typically, the investor has no control over the new commercial enterprise. USCIS is essentially making the investor responsible for job creation, and that is patently unfair.

Comments like these out of HQ betray lack of knowledge on the part of this agency and failure to take into account business realities. If the jobs are there at the time the I-829 petition is filed with USCIS, I say approve it.

I'm tired of this fuzzy thinking when the focus should be on job creation, stupid!