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[HOT] The fairest solution for "material change" in context of EB-5 project proposed


We have what we consider to be the "fairest" solution in the event where there is a "material" change in EB-5 project, without getting into a discussion of what kinds of changes are "material" in the first place. When we say "fairest", we do not mean "elegant" but most equitable. However, we believe the below proposed solution is both equitable and elegant, as well as practical. Therefore, we urge USCIS to adopt the below approach for a solution where "material change" takes place after I-526 petition approval.

We came up with this idea when we examined the potential solution under E-2 status under the below governing 8 CFR Sec. 214.2(e)(8)(iii) for E-2 status.

(iii) Substantive changes . Prior Service approval must be obtained where there will be a substantive change in the terms or conditions of E status. In such cases, a treaty alien must file a new application on Form I-129 and E supplement, in accordance with the instructions on that form, requesting extension of stay in the United States. In support of an alien's Form I-129 application, the treaty alien must submit evidence of continued eligibility for E classification in the new capacity. Alternatively, the alien must obtain from a consular officer a visa reflecting the new terms and conditions and subsequently apply for admission at a port-of-entry. The Service will deem there to have been a substantive change necessitating the filing of a new Form I-129 application in cases where there has been a fundamental change in the employing entity's basic characteristics, such as a merger, acquisition, or sale of the division where the alien is employed.

It should first be noted that USCIS does not offer any concrete guideline on what constitutes a "material" change. Therefore, what USCIS should first do is give clear definition of what changes are "material". The only way to define the "materiality" is in relation to the specific requirements for I-829 conditions removal as stated in EB-5 statutes and regulations.

Then, whenever there is a material change, USCIS should require an APPROVAL of an I-526 amendment, instead of an entirely new, 2nd I-526 petition (as mandated under the current December 2009 Neufeld Memo) which does not protect children who aged-out after I-526 approval but before I-829 filing. However, prior EB-5 cases where I-526 was approved before USCIS implements this new solution should be grand-fathered, so that the petitioners can submit this I-526 amendment at any time, even after I-829 has been filed or even denied.

Any other solution would not be equitable or serve the purpose of EB-5 Program which is to promote job-creation or foster economic growth, because there was no such clear regulation governing a similar "material change" scenario in context of EB-5 cases.