Q: Please consider accepting a declaration from the employer of the created jobs concerning the number of full-time positions employed and an attestation that the employer has properly completed Forms I-9 concerning such employees. USCIS can coordinate with ICE to perform any desired audits of I-9s to discover and sanction any violations or any identity theft by workers who may turn out to be unauthorized. A policy requiring investors to present I-9 forms and not to receive credit for jobs filled by workers who misrepresented themselves as authorized is beyond the scope of the EB-5 program. USCIS demands for individual workers' I-9s, especially in an indirect employment context, would seem to violate guidance issued by the Justice Department’s Office of Special Counsel for Immigration-Related Unfair Employment Practices. Please comment.

A: The initial evidence to provide in support of EB-5 petitions regarding whether the jobs were created is identified in 8 CFR 204.6(j)(4) and 8 CFR 216.6(a)(4)(iv). 8 CFR 103.2(b)(2) provides the regulatory framework for the submission of secondary evidence and affidavits. Note that the EB-5 statutory requirement at INA §203(b)(5)(A)(ii) clearly requires that the EB-5 investment must create full time employment for “not fewer than 10 United States citizens or alien lawfully admitted for permanent residence or other immigrants lawfully authorized to be employed in the United States.” With respect to direct jobs, it is the EB-5 investor’s burden to demonstrate that the jobs created by the investment qualify under this statutory provision.