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[HOT] Should USCIS care whether there are changes to the EB-5 project after I-526 petition approval?


In December 11, 2009 Neufeld guidance memo, USCIS states that in case there has been "changes" to the EB-5 project contained in the I-526 petition, Petitioner "may" file a new I-526 petition and then go through another two years of CPR period via another IV or AOS processing. [I am not certain whether INA 245 even allows the applicant, current or former CPR holder, to file I-485 and adjust.] Now, that sounds reasonable when I-526 petition is pending -- and in fact Izummi held that "material" changes may not be made to the pending I-526 petition in order to make the pending I-526 petition comply with EB-5 law. But I wanted to find out from someone who was not an attorney but just a regular business person what he thought a reasonable position should be where I-526 petition has already been approved (petitioner might have already acquired CPR status), and then there has been certain "change" in the EB-5 project. Therefore, I undertook a painful exercise of explaining EB-5 law, regional center and I-526 and I-829 conditional removal concepts to my friend who is a successful businessman and gave him the following hypo, thinking I will make him stumble.

My hope to my friend went something like this. Let's say a regional center based EB-5 project has I-526s approved for an EB-5 project to build a factory to make pencils. After I-526s have been approved, because of no demand for pencils, the factory decides to make pens and erasers instead; and ultimately enough jobs are created. Do you think the I-829 should be approved, or USCIS should make Petitioners go through two more years of CPR status via new I-526 petition filing and either IV or AOS processing?

My friend immediately said "Of course not. That would be ridiculous."

I then gave him another hypo.

What if a direct, individual EB-5 project described in the approved I-526 petition was for a dairy farm in Reston, VA's TEA area and then because land could not be purchased in Reston, VA, so the same dairy farm was moved to Herndon, VA?

My friend again did not hesitate and said "Same thing. Jobs are jobs. As long as enough jobs were created in Herndon, and both areas were contained in the same regional center's TEA area, I don't see any difference."

I then gave him a final hypo.

Let's say the facts remain the same as in the first hypo. Instead of making pencils, the project decided to build a hotel and operate it, and they also create enough jobs. How about then?

My friend took a little longer and said:

Hmm . . . I don't know why USCIS should care how the jobs were created, as long as there was no cheating, because to me, basically what the EB-5 law does is establish an understanding or bilateral agreement between these foreign investors and USCIS that if foreign investors invest their moneys and create enough jobs within the time period required, USCIS will give them permanent green cards. Why should USCIS care how these foreign investors timely created the jobs? I mean in any project, business plan can change. Heck, these investors should be applauded for pursuing another business and creating jobs because that ultimately benefits the U.S.

Anyway, this exchange led me to think that perhaps my friend knows more about the true purpose of EB-5 Program -- to create jobs within the requisite time period -- better than any EB-5 practitioners or USCIS. No wonder my friend is more successful than me.