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[HOT] [Q] Why the Dec. 11, 2009 Neufeld guidance memo is impractical and does not represent the EB-5 law


[Q] The December 11, 2009 Neufeld guidance memo basically allows the petitioner to file second I-526 petition in case "material" changes (no one knows what they are) take place to the underlying EB-5 project AFTER I-526 petition approval, and if new, second I-526 petition is filed and approved, petitioner must then abandon their conditional permanent resident (CPR) status by using form I-407 and then re-apply via I-485 to reacquire and go through their new, two-year CPR status. What is wrong with this scheme?

* First, note that USCIS itself says contents contained in their guidance memos do not constitute law and cannot be relied upon in any dispute but is issued only to guide CSC examiners. However, this means "practically" the guidance memos have an effect of EB-5 law, unless you choose to fight it at the federal court level, because AAO will almost always follow the USCIS issued guidance memos even though USCIS has said they are not "EB-5 law". I guess that is the home court advantage that a governmental agency has.

We believe the Service could have implemented a better procedure -- one that is more practical and in compliance with the immigration law -- by narrowly defining the "material" changes AFTER I-526 approval and then require an amendment to the original project through a "dummy" I-526 petition -- so that notice of such change to the Service will apply to all investors participating in the same project -- rather than force petitioners individually submit an entirely new, second I-526 petition, then abandon CPR and then re-acquisition of the CPR status which you just abandoned -- and this procedure does not even help "aged-out" dependents who turned 21 in the meantime.

The outlined procedure in the December 11, 2009 Neufeld guidance memo is impractical and causes too much delay. It's a convoluted mechanism that basically allows the Service to deem any changes to the underlying EB-5 project "material" and then to punish someone when there has been bona-fide, non-mateiral changes to the project. The procedure contained in the Neufeld memo looks like some sort of solution where EB-5 project has changed, but it is not.

[Also read http://eb-5center.com/node/708 which points out another procedure which lacks legal support.]

We strongly believe that if such changes to the EB-5 project AFTER I-526 approval are truly "material changes" -- which should be defined in terms of whether a petitioner is able to meet the specific requirements of the stated I-829 requirements -- then, the law, including INA 245(d), should be followed and I-829 should be denied. This is why the Service has to narrowly define what are "material changes" that occur AFTER I-526 approval, and not get concerned about "immaterial changes". Simply put, a "material change" AFTER I-526 approval should be narrowly defined as a change that makes it impossible that petitioner-investor to meet the clearly stated requirements of I-829. We believe the Service is confusing a "material change" BEFORE I-526 approval with a "material change" AFTER I-526 petition: this basically leads the Service to formulate an illegal procedure outlined in the Neufeld guidance memo.

In the event "immaterial" changes occur to the EB-5 project AFTER I-526 petition, review those changes at the I-829 level and if they are really "immaterial" changes, approve the I-829. Or as an alternative, offer an option of filing an amendment through a "dummy" amendment to already-approved I-526 petition if petitioner wants to inform the Service in advance of the "material changes" that have occurred. Why is this "amendment" procedure a better and fairer solution? First, amended petition is allowed to be filed in many other contexts, including H-1B and I-140 immigrant petitions. Second, practically there is no way for regional centers and petitioners (even USCIS itself will have a hard time distinguishing) to know if any change will be considered "material" or "immaterial" changes by USCIS, which means they should always be filing something to protect themselves. Lastly, allowing such amended I-526 petitions would protect the "aged-out" dependents who turned 21 in the meantime. Why USCIS does not simply allow amended I-526 petitions in case of "material" changes is perplexing, especially in light of their previous oral statements that an amendments will be allowed. In case multiple I-526 amendments are needed for a specific regional center based project, one "master" I-526 amendment filing should be allowed, because it makes no sense for each individual petitioner to have to file the same amendment each time. And no, we strongly disagree that the law mandates that each petitioner has to go through the same process: that is due to a very narrow and unreasonable interpretation of the EB-5 statutes and laws.

We believe where the immigration law is clear, it should be followed; in this sense, the December 11, 2009 Neufeld guidance memo is intellectually dishonest policy which the Service just pulled out from thin air like a magician. But where the law is not clear, the CSC Director should exercise her discretion and approve I-829 petition where "immaterial changes" occurred AFTER I-526 approval. Actually, the very fact that I-829 requirements are met should indicate whether certain changes are "material" or "immaterial".