Choosing NAICS Codes

2016 Update: If you came seeking assistance for handling NAICS reporting on the Form I-924A, visit my I-924A Resources post instead. USCIS’s 2011 Q&A for Form I-924A says “The NAICS code identified in Part 3.2 of Form I-924A should have sufficient detail to identify the industry for the primary business activity of the capital investment project.  In general a NAICS code with four-digits, which identifies the industry group of a given economic activity would be an appropriate entry.”

2013 Update:  Since the 5/30/2013 EB-5 Adjudications Policy Memo, NAICS questions have become less important because Regional Centers are no longer restricted by NAICS codes, though the codes are still used for reporting and economic impact analysis. The Policy Memo (footnote 5 on page 26) describes the way that USCIS now handles Regional Center industry categories:

Industry codes are useful for determining that verifiable detail has been provided and the estimated job creation in the economic methodology is reasonable, however it should be noted that these industry codes are used for informational purposes in estimating job creation and do not limit the economic or job creating activity of an approved regional center or its investors. Jobs created in industries not previously identified in the economic methodology may still be credited to the investors in subsequent Form I-526 and Form I-829 filings, as long as the evidence in the record establishes that it is probably true that the requisite jobs are estimated to be created, or have been created, in those additional industries.

Original Post

Each Regional Center is approved for “a limited geographic area” and “defined economic zones” (see Public Law 107-273). USCIS now specifies that economic zones need to be defined according to the North American Industry Classification System (NAICS). The I-924 Form directs applicants to “Identify each industry that has or will be the focus of EB-5 capital investments sponsored through the Regional Center” by filling in the “NAICS Code for the Industry Category.”

What is NAICS? How can you choose the NAICS codes that are appropriate for your investment focus? How specific do you need to be?

NAICS stands for North American Industry Classification System. You can find NAICS codes and their descriptions at the US Census Bureau.

The I-924 Instructions explain:
Provide the industry category title and the North American Industry Classification System (NAICS) code for each industry category. The NAICS code can be obtained from the U.S. Department of Commerce, Census Bureau. Enter the code from left to right, one digit in each of the six boxes provided in the form in Part 3, item 7. If you use a code with fewer than six digits, enter the code left to right and then add zeros in the remaining unoccupied boxes.

The 9/15/2011 EB-5 Stakeholder Meeting Presentation includes some advice on NAICS codes in answer to the question “What are common reasons for RFEs and denials on I-924 applications?”
…3. Choosing and Identifying Appropriate NAIC Codes. (Form I-924, Part 7.)
A. NAIC code should be appropriate to the requested industry;
B. An overly broad NAIC code may not be representative of the requested industry;
C. An overly narrow NAIC code may be too restrictive for the scope of the contemplated investment project(s) in the requested industry, e.g “NAIC Code 62” includes assisted living facilities but also covers hospitals. There may be a more appropriate for the requested industry.

The The 12/06/2011 I-924a Q&A provides guidance for the I-924a that may also apply to the I-924.
Q. What level of detail must a regional center use to identify the NAICS code for the Industry Category in Part 3.2 of Form I-924A?

• A. The purpose of collecting North American Industry Classification System (“NAICS code”) information regarding the industries in which EB-5 capital is invested and jobs are created is to enable USCIS to provide information to internal and external stakeholders about the industries that are participating in EB-5 capital investment projects.
• According to the U.S. Census Bureau’s FAQs regarding the NAICS codes, NAICS is a two- through six-digit hierarchical classification system, offering five levels of detail. Each digit in the code is part of a series of progressively narrower categories, and the more digits in the code signify greater classification detail. The first two digits designate the economic sector, the third digit designates the subsector, the fourth digit designates the industry group, the fifth digit designates the NAICS industry, and the sixth digit designates the national industry.
• The NAICS code identified in Part 3.2 of Form I-924A should have sufficient detail to identify the industry for the primary business activity of the capital investment project. In general a NAICS code with four-digits, which identifies the industry group of a given economic activity would be an appropriate entry. For example, if the capital investment project involved Fruit and Nut then the appropriate NAICS code to use would be 1113.

USCIS’s Executive Summary of the 5/1/2012 EB-5 Quarterly Stakeholder Engagement includes this advice regarding specificity:

NAICS Codes
Q: In a regional center application, kindly confirm that two digits of North American Industry Classification System (NAICS) codes are considered sufficient with the industry cluster specified and economic report elaborating the same. The rationale behind this is because in a retail and office setting, three digit code tenants are not ascertained at the time of filing the I-924.
A: This is not acceptable. Even within clusters and projects that incur similarities, USCIS requires four digit NAICS codes at a minimum.