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[HOT] Observations on the "material change" referred to the December 11, 2009 Neufeld guidance memo


Here are my observations and wish list on the issue of "material change" referenced in the December 11, 2009 Neufeld guidance memo.

1. I wish USCIS would stop creating new EB-5 law under the guise of guidance memos or forms. It's really confusing.

2. I wish USCIS would actually explain or justify the positions it is taking in these guidance memos, because sometimes what USCIS says is not at all supported by EB-5 law or U.S. immigration law. Case in point: It would be great if USCIS could explain why the framework of U.S. immigration law does not allow for the filing of an amendment to already-approved I-526 petition instead of having to file a new, 2nd I-526 petition. H-1B law allows for an option of amending the already-approved H-1B petition or filing a new H-1B petition. Same goes for I-140 petition. It's sort of unfair to say in the guidance memo "these are the positions we are taking, but these are not the law and cannot be relied upon in case of dispute or litigation, etc." We all know CSC examiners are going to be relying on these guidance memos.

3. The two cases that are most cited by USCIS in support of banning "material changes" are Katigbak and Matter of Izumii cases. However, when you read these cases, it's pretty obvious that these cases deal only with the situation where "material changes" occurred while immigrant petitions were filed AND pending. Therefore, USCIS should explain kindly why these cases are controlling where "material changes" occur AFTER I-526 petition has been approved. I submit that there is a very clear and elegant way to define "material changes". "Material changes" should be defined to mean any changes that would make petitioner's I-829 case clearly not be able to comply with the specifically set forth I-829 requirements under 8 CFR 216.6(c).

4. USCIS should delineate what changes constitute "material changes" and justify their position under the EB-5 law. The Chang federal court case does NOT stand for the proposition that where there are changes to the project after I-526, I-829 should be denied.