原文：http://eb-5center.com/files/Interim EB-5 Tenant-Occupancy GM.pdf
Interim EB-5 Tenant-Occupancy GM December 2012
by Joseph Whalen on Dec 28, 2012
U.S. Citizenship and Immigration Services Office of the Director (MS 2000) This is a very welcome message from USCIS even Washington, DC 20529-2000 if it is LONG OVERDUE! This GM contains several key principles that this advocate and critic has been espousing. It looks like USCIS was paying attention to the stakeholders after all (or at least, eventually). December 20, 2012 GM-602-0001 Guidance Memorandum By Joseph P. Whalen at 5:39 pm, Dec 28, 2012 SUBJECT: Operational Guidance for EB-5 Cases Involving Tenant-Occupancy Purpose This guidance memorandum (GM) is intended to facilitate adjudication of cases involving issues related to the “tenant-occupancy” methodology for establishing job creation in EB-5 cases. The guidance has been formulated following careful internal deliberation, consultation with sister government agencies, and review of responses to requests for evidence (RFEs) issued in February 2012 to a number of outstanding Regional Center applicants who relied on the tenant- occupancy methodology. This guidance will be applied to pending cases and cases filed on or after the date of this guidance that rely on the tenant-occupancy methodology. This guidance does not rescind or supersede other EB-5 guidance. Scope Unless specifically exempted herein, this GM applies to and binds all U.S. Citizenship and Immigration Services (USCIS) employees. Background Among the issues raised in the February 2012 RFEs, USCIS sought 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. These RFEs suggested the types of evidence applicants could submit to make this showing.NEXUS! Implementation Prior to issuing the February 2012 RFEs, USCIS determined that the tenant-occupancy methodology can satisfy the EB-5 program requirement of presenting a “reasonable methodology” that is “supported by economically or statistically valid forecasting tools,” if the applicant presents in “verifiable detail” information sufficient to establish by a preponderance of the evidence that the tenant jobs have resulted from the EB-5 enterprise (i.e., that the creation of
2. GM-602-0001: Operational Guidance for EB-5 Cases Involving Tenant-OccupancyPage 2tenant jobs were facilitated by the EB-5 enterprise, for example through a showing of constrainton the supply of appropriate commercial space or of excess demand for such space).In regional center cases that rely on tenant occupancy models, as in any other regional centercases, USCIS requires evidence that the claimed jobs result, directly or indirectly, from theeconomic activity of the EB-5 commercial enterprise. Jobs that are merely re-located rather thancreated do not count. With respect to indirect job creation, the task for the applicants andpetitioners is to project the number of newly created jobs that would not have been created butfor the economic activity of the EB-5 commercial enterprise. In making that projection, they areto use economically and statistically valid forecasting tools.Whether an applicant or petitioner has demonstrated that an EB-5 enterprise caused the creationof indirect tenant jobs will require determinations on a case-by-case basis and will generallyrequire an evaluation of the verifiable detail provided and the overall reasonableness of themethodology as presented. To claim credit for tenant jobs, applicants and petitioners maypresent evidence backed by reasonable methods that map a specific amount of direct, imputed, orsubsidized investment to such new jobs. However, for applicants and petitioners that insteadseek to utilize a facilitation-based approach, USCIS will not require an equity or direct financialconnection between the EB-5 capital investment and the employees of prospective tenants.Rather, facilitation-based tenant job credit will depend on the extent to which applicants orpetitioners can demonstrate that the economic benefits provided by a specific space project willremove a significant market-based constraint. One way applicants and petitioners can make thisshowing is to indicate how a specific space project will correct market imperfections andgenerate net new labor demand and income that will result in a specified prospective number oftenant jobs that will locate in that space. In high unemployment areas in which new projects arenot likely to significantly displace other income or labor, applicants and petitioners shouldgenerally indicate how a specific project will fill an existing investment void in that area togenerate new demand for the tenant business. Prospective tenant jobs demonstrated byreasonable methods and supported by verifiable evidence pursuant to the above approaches maybe used as direct inputs into appropriate regional growth models to generate the number ofindirect and induced jobs that result from the credited tenant jobs.Where applications for regional centers are approved based on their use of tenant-occupancy This isprojections, the approval notices should contain appropriate language regarding the assumptions totallyunderlying the approval, which if not borne out may impact related adjudications at the I-526 or new forI-829 stages. 1 For example, a Form I-924 with I-526 exemplar may be approved where no USCIS.specific tenant has been identified to occupy space but where the applicant or petitionerreasonably projects that a restaurant will eventually lease the premises. 2 If, after approval of theI-924, the space is leased to a different type of tenant (i.e., a type of restaurant that yieldsdifferent expected employment or a non-restaurant), or fails to achieve previously projected1 USCIS will still apply the principles outlined in this guidance to Regional Centers that currently have an approvalnotice that does not include this language, subject to application of established USCIS policy calling for deference toprior decisions.2 A specific tenant does not need to be identified in order for the business plan to meet program requirements.However, the type of industry of the prospective tenant should be identified (e.g., a restaurant tenant or a clothingstore tenant) to meet the legal requirements set forth in Matter of Ho and 8 CFR 204.6(j)(4)(i)(B).
3. GM-602-0001: Operational Guidance for EB-5 Cases Involving Tenant-OccupancyPage 3occupancy rates, such a change alone will not generally constitute a material change that triggersthe elimination of deference in an actual Form I-526 or negates any possibility of individualinvestors removing their conditions at the Form I-829 stage. 3 However, while such modifiedtenancy arrangement(s) may be permissible under EB-5 program rules, they could neverthelessimpact the project’s ultimate job creation numbers. Therefore, the approval notice shouldcaution 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 economicimpact analysis and ultimate job creation numbers will be revisited in future adjudications thatrelate to that project.USCIS will issue separate guidance on crediting jobs in a situation where more than one EB-5entity may be seeking credit for the identical job position. In the interim, where only one casefiled with USCIS has sought credit for a specific job position, that case should be credited withthe job, provided that all program requirements have been satisfied.Adjudication of cases involving tenant-occupancy should proceed based on these principles.UseThis GM is intended solely for the guidance of USCIS personnel in the performance of theirofficial duties. It is not intended to, does not, and may not be relied upon to create any right orbenefit, substantive or procedural, enforceable at law or by any individual or other party inremoval proceedings, in litigation with the United States, or in any other form or manner.Contact InformationQuestions or suggestions regarding this GM should be addressed through appropriate channels tothe Service Center Operations Directorate.3 For example, it is not necessarily a material change if a shopping mall fails to lease one out of 50 retail spaces. Bycontrast, for example, if the projection was for a single type of tenant to occupy the entire building space and notenant materializes, that may be a material change.
Interim EB-5 Tenant-Occupancy GM December 2012
by Joseph Whalen on Dec 28, 2012
U.S. Citizenship and Immigration Services Office of the Director (MS 2000) This is a very welcome message from USCIS even Washington, DC 20529-2000 if it is LONG OVERDUE! This GM contains several key principles that this advocate and critic has been espousing. It looks like USCIS was paying attention to the stakeholders after all (or at least, eventually). December 20, 2012 GM-602-0001 Guidance Memorandum By Joseph P. Whalen at 5:39 pm, Dec 28, 2012 SUBJECT: Operational Guidance for EB-5 Cases Involving Tenant-Occupancy Purpose This guidance memorandum (GM) is intended to facilitate adjudication of cases involving issues related to the “tenant-occupancy” methodology for establishing job creation in EB-5 cases. The guidance has been formulated following careful internal deliberation, consultation with sister government agencies, and review of responses to requests for evidence (RFEs) issued in February 2012 to a number of outstanding Regional Center applicants who relied on the tenant- occupancy methodology. This guidance will be applied to pending cases and cases filed on or after the date of this guidance that rely on the tenant-occupancy methodology. This guidance does not rescind or supersede other EB-5 guidance. Scope Unless specifically exempted herein, this GM applies to and binds all U.S. Citizenship and Immigration Services (USCIS) employees. Background Among the issues raised in the February 2012 RFEs, USCIS sought 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. These RFEs suggested the types of evidence applicants could submit to make this showing.NEXUS! Implementation Prior to issuing the February 2012 RFEs, USCIS determined that the tenant-occupancy methodology can satisfy the EB-5 program requirement of presenting a “reasonable methodology” that is “supported by economically or statistically valid forecasting tools,” if the applicant presents in “verifiable detail” information sufficient to establish by a preponderance of the evidence that the tenant jobs have resulted from the EB-5 enterprise (i.e., that the creation of
2. GM-602-0001: Operational Guidance for EB-5 Cases Involving Tenant-OccupancyPage 2tenant jobs were facilitated by the EB-5 enterprise, for example through a showing of constrainton the supply of appropriate commercial space or of excess demand for such space).In regional center cases that rely on tenant occupancy models, as in any other regional centercases, USCIS requires evidence that the claimed jobs result, directly or indirectly, from theeconomic activity of the EB-5 commercial enterprise. Jobs that are merely re-located rather thancreated do not count. With respect to indirect job creation, the task for the applicants andpetitioners is to project the number of newly created jobs that would not have been created butfor the economic activity of the EB-5 commercial enterprise. In making that projection, they areto use economically and statistically valid forecasting tools.Whether an applicant or petitioner has demonstrated that an EB-5 enterprise caused the creationof indirect tenant jobs will require determinations on a case-by-case basis and will generallyrequire an evaluation of the verifiable detail provided and the overall reasonableness of themethodology as presented. To claim credit for tenant jobs, applicants and petitioners maypresent evidence backed by reasonable methods that map a specific amount of direct, imputed, orsubsidized investment to such new jobs. However, for applicants and petitioners that insteadseek to utilize a facilitation-based approach, USCIS will not require an equity or direct financialconnection between the EB-5 capital investment and the employees of prospective tenants.Rather, facilitation-based tenant job credit will depend on the extent to which applicants orpetitioners can demonstrate that the economic benefits provided by a specific space project willremove a significant market-based constraint. One way applicants and petitioners can make thisshowing is to indicate how a specific space project will correct market imperfections andgenerate net new labor demand and income that will result in a specified prospective number oftenant jobs that will locate in that space. In high unemployment areas in which new projects arenot likely to significantly displace other income or labor, applicants and petitioners shouldgenerally indicate how a specific project will fill an existing investment void in that area togenerate new demand for the tenant business. Prospective tenant jobs demonstrated byreasonable methods and supported by verifiable evidence pursuant to the above approaches maybe used as direct inputs into appropriate regional growth models to generate the number ofindirect and induced jobs that result from the credited tenant jobs.Where applications for regional centers are approved based on their use of tenant-occupancy This isprojections, the approval notices should contain appropriate language regarding the assumptions totallyunderlying the approval, which if not borne out may impact related adjudications at the I-526 or new forI-829 stages. 1 For example, a Form I-924 with I-526 exemplar may be approved where no USCIS.specific tenant has been identified to occupy space but where the applicant or petitionerreasonably projects that a restaurant will eventually lease the premises. 2 If, after approval of theI-924, the space is leased to a different type of tenant (i.e., a type of restaurant that yieldsdifferent expected employment or a non-restaurant), or fails to achieve previously projected1 USCIS will still apply the principles outlined in this guidance to Regional Centers that currently have an approvalnotice that does not include this language, subject to application of established USCIS policy calling for deference toprior decisions.2 A specific tenant does not need to be identified in order for the business plan to meet program requirements.However, the type of industry of the prospective tenant should be identified (e.g., a restaurant tenant or a clothingstore tenant) to meet the legal requirements set forth in Matter of Ho and 8 CFR 204.6(j)(4)(i)(B).
3. GM-602-0001: Operational Guidance for EB-5 Cases Involving Tenant-OccupancyPage 3occupancy rates, such a change alone will not generally constitute a material change that triggersthe elimination of deference in an actual Form I-526 or negates any possibility of individualinvestors removing their conditions at the Form I-829 stage. 3 However, while such modifiedtenancy arrangement(s) may be permissible under EB-5 program rules, they could neverthelessimpact the project’s ultimate job creation numbers. Therefore, the approval notice shouldcaution 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 economicimpact analysis and ultimate job creation numbers will be revisited in future adjudications thatrelate to that project.USCIS will issue separate guidance on crediting jobs in a situation where more than one EB-5entity may be seeking credit for the identical job position. In the interim, where only one casefiled with USCIS has sought credit for a specific job position, that case should be credited withthe job, provided that all program requirements have been satisfied.Adjudication of cases involving tenant-occupancy should proceed based on these principles.UseThis GM is intended solely for the guidance of USCIS personnel in the performance of theirofficial duties. It is not intended to, does not, and may not be relied upon to create any right orbenefit, substantive or procedural, enforceable at law or by any individual or other party inremoval proceedings, in litigation with the United States, or in any other form or manner.Contact InformationQuestions or suggestions regarding this GM should be addressed through appropriate channels tothe Service Center Operations Directorate.3 For example, it is not necessarily a material change if a shopping mall fails to lease one out of 50 retail spaces. Bycontrast, for example, if the projection was for a single type of tenant to occupy the entire building space and notenant materializes, that may be a material change.
