5月15日，移民局发布了EB-5审案手册的更新，这是本月EB-5的第二次更新。此次更新，做了一项重大政策调整，废除了长期以来移民局认可，但是相当有争议的租户就业模式。
租户就业大体概念就是，某项目建造的物业设施出租给租户，而租户创造的就业被用来计算入该项目所创造的衍生就业中。
2012年12月20日，移民局的政策指南首次明确认可了租户就业模式，并给出了认定标准，主要是项目方要求能够证明租户就业是全新的，而不是从某地迁移过来的。
在16年11月30日，移民局正式发布的审案手册上（更是明确了租户就业的审批条件。而且，在最近的Grassley等EB-5改革草案中，还在认可租户就业模式
一夜之间，移民局废除掉了该项就业认定模式，不过，对于投资者来说基本不用担心，移民局的规定是：
USCIS will no longer accept tenant-occupancy models for filings on or after May 15, 2018. USCIS will continue to give deference to Form I-526, Immigrant Petition by Alien Entrepreneur, and Form I-829, Petition by Entrepreneur to Remove Conditions on Permanent Resident Status, when directly related to previously approved projects, absent material change, fraud or misrepresentation, or legal deficiency of the prior determination.
按照个人的理解，该规定是：
1. 在2018年5月15日之前，已经递交的I-526/I-829申请，仍依照老政策接受租户就业模式；
2. 2018年5月15日当天及之后，递交的申请，将不再接受租户就业模式，除非：该项目已经获批，而且不存在重大变更（Material change）、欺诈、误导或者以前审批有法律缺陷的情况；
一个月之内，移民局两次更新EB-5的审案手册，看来移民局还在持续改进。
同时，在5月29日之前，外界都可以就此次更新发表评议。发表评议可以访问该页面：https://www.uscis.gov/outreach/feedback-opportunities/policy-manual-comment，或者直接发邮件到：publicengagementfeedback@uscis.dhs.gov。
对于业内而言，哭笑不得的是，此次租户就业的政策更新对于行业来说，已经非常不重要了。租户就业，主要适用于一些建筑就业不足，而特别依赖于经营就业的项目，如商场、学校等，而过去几年绝大多数的项目都开始基本完全依赖于建筑就业了，其他项目少之又少。而移民局，却没有着力于重要事项，譬如明确再投资的审批政策。
另外，移民局废了租户就业，却对另一相关议题，住客花费所创造的就业，并未有进一步新政策。
不过，好消息是，移民局还在继续更新审案手册，也许这个邮箱是可以给移民局提意见的窗口：publicengagementfeedback@uscis.dhs.gov。现在再投资议题纠纷很多，移民局就算对排期无能为力，调整或明确再投资政策，实属必要。有兴趣的朋友，可以尝试就此发表评论。
附：审案手册中的租户就业条款
以前版本（17.6.14）：
6. Tenant Occupancy Methodology
The tenant occupancy methodology can satisfy the EB-5 program requirement of presenting a reasonable methodology that is supported by economically or statistically valid forecasting tools. Information must be presented in verifiable detail that is sufficient to establish that the tenant jobs are likely to result from the new commercial enterprise.
Tenant occupancy models must demonstrate that the claimed jobs result directly or indirectly from the economic activity of the new commercial enterprise. Jobs that are merely re-located rather than created are not sufficient.
Whether a new commercial enterprise has caused the creation of indirect tenant jobs is an adjudicatory decision made on a case-by-case basis and will generally require an evaluation of the verifiable detail provided and the overall reasonableness of the methodology presented.
A tenant occupancy model should project the number of newly created jobs that would not have been created but for the economic activity of the new commercial enterprise.
To claim credit for tenant jobs, immigrant investors may present evidence backed by reasonable methods that map a specific amount of direct, imputed, or subsidized investment to such new jobs. Immigrant investors may also utilize a facilitation-based approach to demonstrate that the economic benefits provided by a specific space project will remove a significant market-based constraint. One way applicants and petitioners can make this showing is to indicate how a specific real estate project will correct market imperfections and generate net new labor demand and income that will result in a specified prospective number of tenant jobs that will locate in that space.
For example, immigrant investors may provide a market analysis showing that new tenants in a specific industry will occupy the space, evidence of a lack of appropriate space for a specific industry in the geographic area, evidence of substantial cost savings to tenants that allowed them to occupy the space, or evidence of growing demand for space related to specific industries in the geographic area. In high unemployment areas in which new projects are not likely to significantly displace other income or labor, immigrant investors should generally indicate how a specific project will fill an existing investment void in that area to generate new demand for the tenant business.
Prospective tenant jobs or tenant activity demonstrated by reasonable methods and supported by verifiable evidence may be used as direct inputs into appropriate regional growth models. These inputs can project the number of indirect and induced jobs that result from the credited tenant jobs. Immigrant investors who utilize the facilitation-based approach do not need to demonstrate an equity or direct financial connection between their capital investment and the employees of prospective tenants.
Approved regional center applications based on the use of tenant occupancy projections should contain appropriate language regarding the assumptions underlying the approval in the approval notice. There may be a negative impact to the related immigrant petitions and petitions to remove conditions on residency if the claims made on the regional center application do not occur.
For example, an application for regional center designation filed with an exemplar immigrant petition may be approved where no specific tenant has been identified to occupy a commercial space. The regional center applicant may reasonably project that a restaurant will eventually lease the premises.
If after approval of the application for regional center designation the space is leased to a different type of tenant (for example, a different type of restaurant that yields different expected employment or a non-restaurant), or fails to achieve previously projected occupancy rates, this change alone will not necessarily constitute a material change that triggers the elimination of deference. It is not necessarily a material change if a shopping mall fails to lease 1 out of 50 retail spaces. By contrast, if the projection was for a single type of tenant to occupy the entire building space and no tenant materializes, that may constitute a material change.
While such modified tenancy arrangements may be permissible, they could nevertheless impact the project’s estimated job creation numbers. Therefore, the application for regional center designation approval notice should caution that the approved job creation estimates are based on a restaurant occupying that space. If no tenant or a different type of tenant eventually occupies the space, the economic impact analysis and ultimate job creation numbers will be revisited in future adjudications that relate to that project.
最新版本（18.5.15）：
6. Rescission of Guidance on Tenant Occupancy Methodology
As of May 15, 2018, USCIS rescinded its prior guidance on tenant occupancy methodology. Previously, on December 20, 2012, USCIS had issued policy guidance defining the criteria to be used in the adjudication of applications and petitions relying on tenant occupancy to establish indirect jobs. See Operational Guidance for EB-5 Cases Involving Tenant-Occupancy, GM-602-0001, issued December 20, 2012. In November 2016, USCIS published consolidated policy guidance on immigrant investors in this Policy Manual, including guidance on the tenant occupancy methodology. That guidance provided that investors could (1) map a specific amount of direct, imputed, or subsidized investment to new jobs, or (2) use a facilitation-based approach to demonstrate the project would remove a significant market-based constraint.
The first method requires mapping a specific amount of direct, imputed, or subsidized investment to new jobs such that there is an equity or direct financial connection between the EB-5 capital investment and the employees of prospective tenants. In practice, however, the construction of standard office or retail space alone does not lead to a sufficient connection for this type of mapping such that tenant jobs can be credited to the new commercial enterprise. The existence of numerous other factors, such as the identity of future tenants and demand for that type of business, makes it difficult to relate individual jobs to a specific space.
The second method looks at whether the investment removes a significant market-based constraint, referred to in the 2012 guidance as the “facilitation based approach.” In providing this approach as an option, USCIS explicitly allowed applicants and petitioners to avoid having to establish an equity or direct financial connection between the EB-5 capital investment and the employees of prospective tenants. As of May 15, 2018, however, USCIS determined that that allowance was ill-advised, because a direct financial connection between the EB-5 capital investment and the job creation is necessary to determine a sufficient nexus between the two. Reliance on a showing of constraint on supply or excess of demand by itself does not establish a causal link between specific space and a net new labor demand such that it would overcome the lack of a sufficient nexus.
Moreover, allowing applicants and petitioners to use prospective tenant jobs as direct inputs into regional growth models to generate the number of indirect and induced jobs that result from the credited tenant jobs leads to a more attenuated and less verifiable connection to the investment. There is also no reasonable test to confirm that jobs claimed through either tenant-occupancy methodology are new rather than relocated jobs such that they should qualify as direct inputs in the first place.
In sum, tenant-occupancy methodologies described in the 2012 Operational Guidance and previously incorporated into the Policy Manual result in a connection or nexus between the investment and jobs that is too tenuous and thus are no longer considered reasonable methodologies or valid forecasting tools under the regulations.
天津冠桥移民
天津冠桥海外
