2010/04/28 -- CSC Stakeholders Meeting at Laguna Niguel CSC Facility


* Time to time, there are CSC stakeholders meetings held on general immigration issues, where EB-5 related questions come up. Because of proximity of our law office to the CSC facility, our immigration law office is able to attend most of these stakeholders meetings in person to listen to and ask questions on EB-5 related issues to get a better "feel" on how CSC is interpreting certain EB-5 issues.

Our impression from this meeting was that CSC was either unwilling or unable to give clearly defined scenarios which constitute "material changes" AFTER I-526 approvals -- which require filing of new, second I-526s under the December 11, 2009 Neufeld guidance memo.

Q: Can an investor submit a second amended I-526 immigrant petition under the December 11, 2009 Neufeld guidance memo even if the I-829 petition was denied or remains pending?
A: If the I-526 petition was denied, then it is not possible to submit the second petition. If it remains pending, you can submit withdrawal of the I-829 along with the second I-526.

Q (follow-up): if you submit a second I-526 due to a material change, will such second I-526 petitions be processed more quickly given that the applicant is running out of time?
A: Generally, no. We won’t be able to determine that the case needs to be expedited through the mailroom. You may submit an expedite request through the regular channels. [This process, even if lawful, is way too cumbersome and inefficient.]

Q: Where alien investor and dependent family members wish to file I-485 adjustment applications based on the approved I-526 immigrant petition -- and I-485 is already pending based on let's say I-140 immigrant petition -- can the pending I-485 adjustment of status application be transferred from I-140 petition category to EB-5 category without paying another I-485 fee?
A: (Surprising answer) This can be accommodated by sending an email with the information on both cases to the EB-5 unit email address. We will request the I-485 adjustment of status file and adjudicate it. [If this kind of accommodation can be made, why not also allow alien investor to file an amendment to already-approved I-526 petition where there is material change?]

Q: Will you issue a receipt notice for I-526 exemplar filings for non-regional center cases?
A: If the project is not part of a regional center, we do not have an exemplar process; therefore, for a direct investment EB-5 case, there is no exemplar process. The exemplar process, which involves submitting a mock I-526 application and all supporting documentation, is part of a regional center amendment petition. If the regional center has been approved, you can file a regional center amendment application and attach an exemplar. You will get an approval letter for the amendment (there is no formal I-797 receipt notice for regional center approvals).

Q: Does the December 2009 Neufeld memo guidance allowing for conditional permanent resident investors to file a new I-526 to reflect a change in the investment plans conflict with INA 245(f) which specifically prohibit aliens who obtained CPR status through EB-5 category from adjusting under INA 245(a)?
A: We do not believe the memo conflicts with the adjustment of status regulations and INA §§245(a)( and 245(f). It may seem to do so, however, this issue has been reviewed at the highest levels. Thus, if an alien is given CPR and has a change in plans and files a new I-526, we can follow the Neufeld memo to allow a new 2-year CPR period upon I-526 approval. [It's not at all certain that Matter of Stockwell applies to this situation.]

Q: Would you consider preserving the priority dates for aged-out cases?
A: At this point, we do not anticipate that happening. [That means a clear "no".]