USCIS Reverses Position on Tenant Occupancy Jobs

In 2012, USCIS reversed its long-standing position that had allowed EB-5 projects to prove job creation through tenant occupancy jobs. The new USCIS policy created seemingly insurmountable obstacles that appeared likely to eliminate from the EB-5 program projects involving retail or office space where the requisite jobs would be produced from employees of retail or commercial tenants.

At the time that this happened, we had structured a project in the greater New York area involving retail and office, which could only be qualified for EB-5 purposes if tenant occupancy jobs were included. As it had done with every other tenant occupancy project, USCIS denied the application. However, unlike with every other project, we appealed the denial to the USCIS Decision Board.

During the Decision Board hearing, we presented proof that both office space and retail/restaurant space in the area were at “full occupancy” such that any tenant-created jobs would be new jobs and not simply relocated jobs. We also presented proof that vacated space in the area was filled with a new tenant within 1 to 2 months, which proved that we were adding new tenants and new jobs. We presented an expert witness report showing excess demand for both retail and office space. We also proved that the area had abnormally low vacancy rates and that our project would “correct market imperfections”.

Based upon these showings, USCIS reversed its position; and approved this regional center and project based totally on tenant occupancy jobs. This is the only known case of a tenant occupancy-solely reliant project being approved subsequent to the USCIS change of position.