http://www.nytimes.com/2011/12/19/nyregion/new-york-developers-take-advantage-of-financing-for-visas-program.html?_r=1&scp=1&sq=eb-5&st=cse
http://www.nytimes.com/2011/12/27/opinion/million-dollar-investor-visas.html?scp=2&sq=eb-5&st=cse
The above linked article and opinion in the New York times addresses an issue that has arisen more frequently as the benefit of the EB-5 program has grown: the "gerrymandering" by States of population tracts so that the foreign investment generated by the EB-5 program is directed to specific projects in specific areas.
Targeted Employment Areas are determined by a state body that certifies that the area where the EB-5 investment or regional center project is located has an unemployment rate 150% higher than the national average. Legislation creating the program did not specify the criteria for determining whether an area is a high unemployment area.
In the EB-5 context, pertinent part of the statute states:
(ii) In the case of a high unemployment area:
(A) Evidence that the metropolitan statistical area, the specific county within a metropolitan statistical area, or the county in which a city or town with a population of 20,000 or more is located, in which the new commercial enterprise is principally doing business has experienced an average unemployment rate of 150 percent of the national average rate; or
B) A letter from an authorized body of the government of the state in which the new commercial enterprise is located which certifies that the geographic or political subdivision of the metropolitan statistical area or of the city or town with a population of 20,000 or more in which the enterprise is principally doing business has been designated a high unemployment area. The letter must meet the requirements of 8 CFR 204.6(i).
As it stands, the New York State Department of Economic Development determines, or defines, a Targeted Employment Area within New York State. There are areas of Manhattan, especially the diamond district and area surrounding the Brooklyn and lower Manhattan waterfronts, mentioned in the above article do not appear to be areas of high unemployment upon first glance. Is the state, then, violating the spirit of the law in focusing on areas these areas for development?
In this blogger's opinion, the answer is no. First, there is no phohibition against combining census districts to create a Targeted Employment Area. There is also no "one size fits all" method for determining such an area. New York City and Omaha, Nebraska, for instance, although cities, are not the same. Their populations are distributed differently and their needs for economic development are different. Therefore, aplying a blanket definition of a targeted employment area for both states would not make sense. Restricting the method of determining a Targeted Employment Area, as the articles suggest, also may not be in the spirit of the law. The goal, after all, is economic development.
Would it be better to limit what constitutes a targeted economic area to USCIS?
No. In the New York examples mentioned, the census tracts that are combined do include a large number of areas of high employment. The map referenced above also includes both commercial, residential and former industrial areas that form a coherent whole: the lower Manhattan waterfront. The areas are connected by bridges, tunnels and subway lines. People live, play and work in the outlined areas. A person living in the Farragut house may be one of the ten employees required by the program.
Taking the Nebraska New York example above a step further, it is bad idea to apply a one size fits all model for determining what constitutes a Targeted Employment Area. The United States covers a large, diverse land mass. It is divided into thousands, if not millions of smaller geographic units. Some are densely populated; others are sparse. Economic development requires a diversity of strategies applied carefully to achieve the maximum result: jobs for workers in the United States. Creating a targeted employment area that includes higher and lower income census areas may be exactly what is needed to generate the investment necessary to foster economic growth.
If you are interested in the EB-5 program, feel free to contact me. My information is below:
Robert J. Maher, Esq.
Law Office of Robert J. Maher
52 Duane Street, 7th Floor
New York, NY 10007
Tel. (212) 939-7548
Fax. (212) 732-6323
Skype Phone: 917-720-3526
Skype User name: RMaher2
website: https://www.RMaher@RobertMaherLaw.com
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