Still on USCIS EB-5 Stakeholders Call but I found something interesting…

I’m still on the call, marveling at the tremendous diversity in domain expertise demonstrated by the folks calling in with questions (i.e. brilliant to utterly sans clue (-:) and I noticed this on question 15 of the Meeting Q&A…see what I highlight and watch the bullet USCIS dodges, accidentally or intentionally:

Credit for All Jobs Saved or Created

It is our understanding that when EB-5 investor money provides some of the funds for a business, the EB-5 investors get credit for all the jobs saved or created. Is this true?

Response: Yes. The establishment of a new commercial enterprise may be used as the basis of a petition for classification as an alien entrepreneur by more than one investor, provided each petitioning investor has invested or is actively in the process of investing the required amount for the area in which the new commercial enterprise is principally doing business, and provided each individual investment results in the creation of at least 10 full-time positions for qualifying employees. The establishment of a new commercial enterprise may be used as the basis of a petition for classification as an alien entrepreneur even though there are several owners of the enterprise, including persons who are not seeking classification under section 203(b)(5) of the Act and non-natural persons, both foreign and domestic, provided that the source(s) of all capital invested is identified and all invested capital has been derived by lawful means. See 8 CFR 204.6(g).

Okay, all that is fine and correct but…what about job preservation??  Given my penchant for reading too much into everything and overanalyzing, it may be that the questioner was failing to distinguish between job preservation as relating to a statutorily-defined “troubled business” and plain old new job creation.  Maybe the good folks at Laguna Niguel DID answer the question fully!

For me, however, a more comprehensive question is begged: 

When a project involves a troubled enterprise but the EB-5 investment will both save jobs AND create new ones, how is the job count methodology between the two different treatments of head-counting reconciled?

I would sure love to have the answer to that.  Right now, the only way I can be sure that my RC client is protected is by separating the first tranche of investment and seeking adjudication under the “troubled business” parameters until we think we’ve got the number of EB-5 investors who will preserve the existing jobs…and then move forward with future tranches creating new jobs.

It would sure be great to be able to combine both job preservation and job creation under a single adjudicatory protocol.  Unfortunately for everyone, this has not been addressed in law, regulations, or memoranda…maybe it will be soon!  USCIS, thoughts?