5/15 Policy Manual Update (tenant occupancy)

Update: for more in-depth analysis, see USCIS Evicts Tenant Occupancy Job Counting from EB-5 by Robert C. Divine, Baker Donelson Bearman, Caldwell & Berkowitz, PC and R.I.P. Tenant Occupancy Jobs? An Economist’s Perspective By Jeffrey B. Carr, Economic & Policy Resources, Inc.


USCIS has made another revision to the EB-5 section of the USCIS Policy Manual, this time to rescind its former guidance on counting jobs associated with tenants in a new building funded by EB-5 investment. Now, the tenant occupancy policy formerly in 6 USCIS-PM G Chapter 2 (D) Section 6 has been deleted and replaced with a section in which USCIS explains why the previous policy was wrong. Old policy in a nutshell: We concede the possibility of demonstrating acceptable nexus between investment and tenant job creation, under certain very restricted conditions. New policy in a nutshell: there is no acceptable nexus between investment and tenant job creation. In other words, what was previously only effectively nearly impossible is now definitively impossible, officially.

FYI this document compares the deleted section with the new section. Once again, I copied the 5/15/2018 PM in its entirety into a new document, and used Word’s Compare function to confirm that nothing else changed between the 5/15 and 5/2 versions of Volume 6 Part G. And indeed, no other significant changes. FYI, here’s my folder with all distinct versions of 6 USCIS-PM G.

I don’t know whether to laugh or cry about this change. We’ve been desperately, urgently waiting and begging for clear policy on redeployment, among other issues, and they spend time fiddling with tenant occupancy? How many people have even tried counting tenant jobs since 2013? How is this an issue now? Last year I deleted a bunch of old tenant occupancy-related posts and most of my informational page on the TO question because I thought it had become irrelevant. If indeed TO is not involved in any recent or current offerings, then USCIS is guilty of shameful waste of time. Or if by chance any recent/current offerings do involve TO, relying on guidance that’s been consistent since 2012, then shame on USCIS for sending out a Policy Alert today literally saying that the policy is rescinded as of yesterday.

The new PM language on tenant occupancy states that “a direct financial connection between the EB-5 capital investment and the job creation is necessary to determine a sufficient nexus between the two.” I wonder what USCIS thinks “direct financial connection” means exactly, and the implications beyond tenant occupancy.

Apparently we get until May 29 to comment on the policy change, though it’s effective as of May 15.

On the bright side, two EB-5 policy updates in a month! It’s nice to see the policy process moving. I could just wish for better updates.

Also, FYI there is a change to Volume 7 on adjustment of status that can affect EB-5 among other visa categories.


About Suzanne (www.lucidtext.com)
Suzanne Lazicki is a business plan writer, EB-5 expert, and founder of Lucid Professional Writing. Contact me at suzanne@lucidtext.com (626) 660-4030.

9 Responses to 5/15 Policy Manual Update (tenant occupancy)

  1. Abhishek Saraf says:

    Has anyone got approval from September 2016

  2. IGBOT says:

    Sorry Suzanne, I don’t quite understand this change. Does it not require 10 jobs per investor any more?

    • This policy change does not change the EB-5 job creation requirement, which is still 10 jobs per investor. It just officially eliminates one method that economists used to use to calculate the employment impact of construction projects.

  3. Michael says:

    Hi Suzanne, does this change apply to regional center? Don’t quite understand which projects would use the method to calculate creation of 10 jobs in the old policy.

    • The change specifically prohibits a project that built an office or retail building from counting job creation by 3rd-party tenants in that building as employment created by the project. This does just apply to regional centers, as direct investors have never been able to count tenant jobs. But so far as I know, even most regional centers have not attempted to count direct job creation by tenants since 2012, when USCIS cracked down on the practice. So I don’t consider this 2018 policy update a particularly significant change.

  4. Karan says:


    Firstly this is great blog very informative and extensive knowledge.

    I have priority date of 30th Oct 2017 ( India ) with investment in RC with examplar approved project.

    Are there any chances that we might an faster approval coz its examplar approved project, Also how likely is it to have premium processing for eb5 to be included in eb5 reform.
    Thanks n Regards

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