On April 14, 2011 the Administrative Appeals Office decided the attached case, the name of which has been redacted. However, the AAO made a finding in this case that relates to whether USCIS can revisit the econometric analysis (the multiplier) at the I-829 petition level. The answer is a distinctive NO. The decision goes on to say that if USCIS approved the multiplier at the I-526 petition level then the director cannot disallow the econometric multiplier at the I-829 petition level as it relates to the counting of indirect jobs. The only question at that point with respect to the counting of the indirect jobs is whether the business plan was followed. This seems to be a clear interpretation by AAO that once the multiplier contained in the Econometric Analysis is approved by USCIS at the I-526 petition level the counting of indirect jobs at the I-829 petition level cannot be revisited by USCIS, unless the business plan was not followed. The following is the pertinent part of the decision relative the subject of counting indirect jobs.

The regulation at 8 C.F.R. § 204.6(m)(3)(v) provides that a regional center proposal must be supported by “economically or statistically valid forecasting tools, including, but not limited to, feasibility studies, analyses of foreign and domestic markets for the goods or services to be exported, and/or multiplier tables.

As stated above, in support of the original Form 1-526, counsel asserted that the petitioner would use a 2.66 multiplier to calculate total job creation. The director approved the petition without further inquiry, apparently considering the economic formula to be a “reasonable methodology” as discussed at 8 C.F.R. §§ 204.6G)(4)(iii) and (m)(3)(v). In the matter before us, the director now questions whether the multiplier is appropriate for the dairy’s location.

The Ninth Circuit, in Chang v. United States of America, 327 F. 3d 911 (9th Cir. 2003), held that, during the adjudication of a Form 1-829, USCIS could not review whether the initial plan submitted with the Form 1-526 was qualifying, only whether the alien sustained that plan. Specifically, the court stated that the Form 1-526 approval may not be “decoupled from [Form] 1-829 approval” Id. The court further stated that Form 1-829 approval is predicted by Form 1-526 approval and “successful execution of the approved plan.” Id. As noted by the court in Chang, 327 F. 3d at 927, far more evidence is required in support of the Form 1-526 petition. In fact, as stated above, the regulation at 8 C.F.R. § 204.6G)(4)(iii) expressly requires the submission of reasonable methodologies for determining indirect job creation at the Form 1-526 stage. At the Form 1-829 stage, the petitioner is not required to submit such evidence, although the petitioner must use the methodologies approved at the Form 1-526 stage to demonstrate that his investment has created the requisite employment.

Under the reasoning of Chang, the director erred in revisiting the appropriateness of the multiplier. The director approved the Form 1-526, which disclosed that the petitioner would be using the 2.66 multiplier for the location of the dairy. The petitioner did not materially change the location of the proposed employment creation and the director does not identify information that was misrepresented or not disclosed at the Form 1-526 stage that would warrant a new evaluation of the multipliers used. Thus, the petitioner should be able to rely on the 2.66 multiplier as an acceptable means of demonstrating total job creation, including indirect jobs. The AAO withdraws the director’s concern that the 2.66 multiplier is not appropriate.