In this type of Regional Center cases, the USCIS required evidence that the projected jobs attributable to prospective tenants (which would occupy the commercial space created by the EB-5 capital) would represent newly created jobs, and not jobs that the tenant had merely relocated from another location. This determination is necessary to assess whether there is a reasonable causal link between the EB-5 enterprise and the job creation that would allow for the attribution of the tenant jobs to the EB-5 enterprise.
In regional center cases
that rely on tenant occupancy models, as in any other regional
center cases, USCIS requires evidence that the claimed jobs result,
directly or indirectly, from the economic activity of the EB-5
commercial enterprise. Jobs that are merely re-located rather
than created do not count
The foregoing policies will
be implemented as follows: Where applications for regional centers
are approved based on their use of tenant-occupancy projections,
the approval notices should contain appropriate language regarding
the assumptions underlying the approval, which if not borne out
may impact related adjudications at the I-526 or I-829 stages.
For example, a Form I-924 with I-526 exemplar may be approved
where no specific tenant has been identified to occupy space
but where the applicant or petitioner reasonably projects that
a restaurant will eventually lease the premises.
2. If, after approval
of the I-924, the space is leased to a different type of tenant
(i.e., a type of restaurant that yields different expected employment
or a non-restaurant), or fails to achieve previously projected
occupancy rates, such a change alone will not generally constitute
a material change that triggers the elimination of deference
in an actual Form I-526 or negates any possibility of individual
investors removing their conditions at the Form I-829 stage.
3. However, while such modified tenancy arrangement(s) may be
permissible under EB-5 program rules, they could nevertheless
impact the project’s ultimate job creation numbers. Therefore,
the approval notice should caution that the approved job creation
estimates are based on a restaurant occupying that space, and
that if no tenant or a different type of tenant eventually occupies
the space, the economic impact analysis and ultimate job creation
numbers will be revisited in future adjudications that relate
to that project.