In announcing the new TEA rules in late 2019, USCIS did not provide one specific set of data that petitioners can use to demonstrate TEA eligibility. USCIS does state that unemployment data provided by the U.S. Census Bureau’s American Community Survey (ACS) and the Bureau of Labor Statistics (BLS) qualify as reliable and verifiable data for petitioners to use.
American Community Survey (ACS) is the only source of census tract level data specifically mentioned as “reliable and verifiable” by USCIS, and it is based on data collected over a five-year period.
On December 10th, 2020 the Census Bureau released new ACS census tract level data (ACS 15-19). So, ACS 15-19 now replaces ACS 14-18 as the latest and greatest census tract level data available.
USCIS has not provided clear-cut guidance as to when one must start using new data for a TEA analysis. As TEAs come into play at the time of filing of the investor’s I-526 petition (or time of the investment), a general rule-of-thumb for TEAs is to ensure that the analysis utilizes the most recent data that is available at that time. In short, to be safest, for I-526 filings occurring after December 10th that rely on ACS data, the TEA opinion letter included with the I-526 petition should use the newly released ACS 15-19 data.
Q: What TEA Calculations Utilize ACS data?
A: All TEAs that utilize census tracts! (i.e. almost all EB-5 projects)
Two tract-level TEA methods that use ACS: ACS-Only vs. Census Share
Most (if not all) states under the old EB-5 program (pre-November 21, 2019) utilized the “census-share methodology,” which combines ACS and BLS data for TEA calculations at the census tract level. While the Final Rule does not specifically state that USCIS will continue to accept the census-share methodology, the general consensus in the industry is that it will continue to be permitted, as USCIS had approved the census-share method countless times under the prior rules. Besides the census-share method, it also seems reasonable to assume that USCIS will also allow for another approach that uses only ACS data (which we sometimes refer to as an “ACS-only” calculation)
For further detail concerning these two methods, the new TEA rules, and the impacts of COVID-19, please see Michael’s article in the most recent issue if IIUSA’s business journal found here titled New TEA Standards: A Year in Practice – Remaining Questions, Risks, and COVID-19