EB-5 Job Creation

USCIS adjudicators approach job creation in two passes. At the I-526E stage, the question is whether the project, on the documentary record, will create at least 10 qualifying jobs per investor within a reasonable time. At the I-829 stage, the question shifts to whether the project actually did so. The adjudicating officer in each posture is looking for internal coherence between the economic-impact analysis, the Matter of Ho-compliant business plan, the project budget, and the underlying construction and operations timeline.

The seminal authority on the business plan is Matter of Ho, 22 I&N Dec. 206 (Assoc. Comm'r 1998), which established the elements a credible EB-5 business plan must contain: market analysis, competitive analysis, organizational structure, personnel plan with hiring schedule, sales projections, capital requirements, and a level of detail that lets an adjudicator evaluate feasibility. Ho predates RIA but its standard remains the baseline. Practitioners report that adjudicators are now reading Ho-compliant plans more rigorously, particularly the linkage between the staffing schedule and the construction or operating budget that the economic methodology relies on.

In the current adjudication environment, several patterns recur. Officers have been challenging the assumed values for inputs to economic models, particularly floor-area-ratio and tenant-improvement assumptions that drive indirect-job counts in mixed-use projects. They have been scrutinizing tenant-occupancy methodologies for evidence that jobs counted are jobs created and not merely jobs relocated from elsewhere in the regional center's geographic area. And they have been more willing, since the June 2025 reinstitution of the CISNA/EDLO directive, to deny petitions outright where the economic model's inputs cannot be reconciled to the project budget rather than issue an RFE inviting clarification.

For projects whose construction period straddles the 24-month threshold, the construction-period discount has become a recurring point of pressure. Practitioners report RFEs questioning whether construction "begins" at groundbreaking, at permit issuance, or at site preparation; the answer has consequences for whether direct construction jobs count at full or fractional value, and for whether the indirect-job cap is 90% or 75% of total jobs counted toward the petitioner's 10-job allocation. USCIS has not publicly resolved several of these timing questions.

How these analytical pieces fit together in any given case is decided case-by-case by the adjudicating officer, and conservative practice is to over-document at I-526E rather than rely on the model alone.

Challenges to economic-model inputs. USCIS argues that the FAR, tenant-improvement, occupancy-rate, or wage-rate assumptions used in the economic-impact analysis are not adequately supported. Practitioners typically respond with a supplemental affidavit from the economist, recent comparable-project data, and source citations for industry benchmarks. Whether the response rehabilitates the model is decided case-by-case.

Construction-period discount disputes. Officers question when construction "began" for purposes of the 24-month threshold, often citing project documents that show site preparation or design work predating the date the petition relied on. Practitioners typically respond with construction-contract documentation, lender-draw schedules, and a clarifying narrative; the response sometimes preserves a 90%-cap calculation that USCIS had recharacterized into the 75% bucket.

Tenant-occupancy "relocation" arguments. USCIS asserts that jobs counted from tenants are merely relocated from existing businesses elsewhere within the geographic area, not net new jobs. Responses tend to include market studies, tenant declarations, and evidence of new entry into the market. Whether the record overcomes the relocation argument is decided case-by-case.

Revenue-based jobs that did not materialize. At I-829, USCIS challenges revenue-based job projections where actual operating revenues fell short of the model's assumptions. Practitioners typically respond with updated economic analyses keyed to actual revenues, evidence of additional jobs in operations, or evidence of construction-period jobs not previously credited. Outcomes are decided case-by-case and the post-RIA climate has narrowed the room for revenue-shortfall narratives.

**Business-plan deficiencies under Matter of Ho.** USCIS issues RFEs identifying missing elements (often the personnel schedule, market analysis, or capital-requirements section) or internal inconsistencies between the business plan and the economic model. The response is typically a supplemented or restated plan; "skeletal filings are dead," and a thin original plan rarely survives a Ho RFE without substantial supplementation.