Operational Guidance: Guidance on EB-5 Adjudications Involving the Tenant-Occupancy Methodology [open pdf - 58KB]
"Our agency has established guidance regarding the deference we should give to prior adjudications. This guidance is set forth in many of our policy memoranda, including in our December 11, 2009 policy memorandum and AFM [Adjudicator's Field Manual] update regarding the EB-5 program. Our deference policy provides generally that a prior favorable decision will be relied upon in later proceedings unless the facts underlying the prior decision have materially changed, there is evidence of fraud or misrepresentation in the record of proceedings, or the previously favorable decision is determined to be legally deficient. Recently, the question has arisen how our agency's practice of giving deference to prior adjudications should be implemented in an EB-5 case in which the petitioner has used the 'tenant-occupancy' economic methodology to prove the required creation of U.S. jobs. This guidance answers that question. A decision on the economic methodology presented in an EB-5 case is a very fact-specific and fact-dependent one. Consistent with our deference policy, ISOs [Immigration Services Officers] should rely on a previous determination that the economic methodology is reasonable when the methodology is presented to us in a later proceeding based on materially similar facts."
Operational Guidance: OG-602.06-00
U.S. Citizenship and Immigration Services: http://www.uscis.gov/