USCIS has posted a few new 2010 AAO decisions. From March and June, the decisions (denials, of course) deal with standard EB-5 cases unaffiliated with regional centers. However I did find the March 15 cases interesting for discussion of the construction job issue. Technically direct construction jobs can be counted for EB-5 if they last for more than two years, but in practice it’s very difficult to count them. Here is how the AAO explains the problem.
The petitioner submits evidence that the construction project should begin in 2009 and be completed in 201 1. The petitioner concludes that CIMC will employ the necessary employees for more than 24 months on this single project alone and will roll these positions over to new projects.
The director concluded that constructions workers utilized for a limited duration construction phase of less than three years could not serve to satisfy the employment creation requirement.
As stated above, the U.S. District Court for the Eastern District of California stated that the AAO had not abused its discretion “in construing full-time employment to mean continuous, permanent employment.” Spencer, 229 F. Supp. 2d at 1039. The alien in that case had not documented that the construction positions, while full-time for a given week, would be continuous rather than intermittent as the workers’ skills were needed. For example, the plan in that case indicated that the number of framers required would fluctuate month to month. The court concluded that the jobs “do not appear to qualify as permanent, full-time positions, but rather arise when building trade skills are needed during a phase of construction.” While only a district court decision, this decision was affirmed by the Ninth Circuit. 345 F.3d at 683.
The phrase “construction crew workers” is extremely vague. It is not known whether these employees include workers in concrete, framing, finish carpentry, masonry and roofing trades as in Spencer, 229 F. Supp. 2d at 1039. Solely for purposes of employment creation in the context of section 203(b)(5) of the Act, while the individual filling the position need not remain in the position, the position itself cannot be intermittent. Without a more detailed plan of which type of construction workers would be required in each phase, we cannot determine which of those positions, if any, are continuous rather than intermittent. In light of the above, the business plan is insufficient to establish that the petitioner has created or will create the necessary continuous positions.
Further clarifying the issue, here is a footnote that has been appearing on recent Requests for Evidence from USCIS. Though oddly written, the note does confirm that indirect and induced jobs from the construction phase can be counted even if the direct jobs are disqualified as intermittent. And your direct construction jobs may count if your project is “massive and expansive and major.”
USCIS does not accept or credit creation of direct temporary “construction jobs” within a business plan or economic job creation forecasts activities which involve a limited duration construction phase of less than 2 years unless the scope, complexity, and the ongoing construction phase must be fully sustained for all the construction phase jobs for 2 years or more with respect to the size, scope, nature, engineering/technology challenges and breadth of the project — for example a massive-scale nuclear power facility, or major Dam or a giant oil refinery, or similar type of massive and expansive and major engineering project. Shorter term construction jobs less than three years in duration have been determined to be of such a short term in nature as to not be sustained and to decrease and disappear as the initial construction activities wind down to completion. Such shorter term construction jobs in many locations are seasonal at best. Nevertheless, for all capital investment expenditures for the construction phase, all capital-induced “down-stream” support activities and “indirect” jobs impacted and associated with the construction activities such as suppliers, transportation, engineering, and architectural services, maintenance and repair services, interior design services, manufacturing of components and materials, etc., may be factored into the calculations for creation of indirect jobs.
Note that indirect and induced construction jobs can be counted in the Regional Center context. See the January 2009 letter from USCIS to Senator Cornyn regarding construction jobs and the July 2009 Neufeld Memo regarding Job Creation and Full Time Positions.
EB-5 Updates 