[HOT] What USCIS Training Manual says about "material change"


The recently revealed copy of Training Manual supposedly used by CSC EB-5 examiners contain the following on examples of "material change".

As a way of background, a concept of "material change" is a general concept that applies to any type of immigrant petition and even a non-immigrant petition. It is based on common sense and very simple and appears to cover two instances: 1. Once you file an approvable petition and it is pending, you cannot change certain facts or circumstances cannot change so that the very change makes the petition unapprovable; or 2. The petition is not approvable as filed, but you try to make it approvable by changing facts.

I would argue that USCIS, in its haste to apply this concept of "material change" has not only mischaracterized the true concept of "material change" but has misapplied it to EB-5 cases and has also so narrowly construed the material change that almost any case can be denied based on "material change".

Let's first look at what the below content from the Training Manual actually says.

A petitioner must establish eligibility at the time of filing. The petition may not be approved at a future date after the petitioner becomes eligible under a new set of facts. See Matter of Katigbak, 14 I&N Dec. 45,49 (Comm. 1971). Therefore, a petitioner may not make a material change to a petition that has already been filed in an effort to make an apparently deficient petition conform to Service requirements.

- Note that the facts in place at the time of filing are important. In other words, the financial arrangements and other related factors which make a petition approvable need to be in effect when the petition is filed. It is common for the alien to be alerted to deficiencies in the petition through an RFE and to attempt to correct them. If such changes are material, the petition may need to be denied. The judgment of whether the change is material is up to the adjudicating officer. However, a material change is usually one which reflects a substantial alteration in circumstances on which the Service is relying in making its decision.

- EXAMPLES:

An alien files a Form I-526 on June 1,2008, based on a $400,000 investment. In response to an RFE, the alien provides proof of the remaining required amount being invested on July 15, 2008. Is this a material change? – Yes, this is a material change.

-An alien files a Form 1-526 with an arrangement for half of the capital to be paid back to him as a guaranteed return. In response to an RFE, he declares the arrangement null and void. Is this a material change? – Yes, this is a material change.

- An alien files a Form 1-526 and invests $1,000,000 in a business that is planning to operate a Chinese restaurant. In the RFE, it is revealed that the business has decided to operate a Peruvian restaurant instead. Is this a material change? – No, this is not a material change.

The first and second examples used above covers a situation where a deficient I-526 petition was filed, and while the I-526 is pending, the petitioner tries to change certain aspects of the petition to make it approvable -- thereby resulting in a "material change". Now, one question I have is why not just allow the petitioner to make the particular change? Why make the petitioner withdraw the I-526 petition and refile it? Seems to be a waste of time and effort for everyone involved. One argument might be that allowing an earlier filing of a defective immigrant petition would entitle the beneficiary to obtain an earlier priority date, but this argument has no practical merit in EB-5 context where immigrant visa numbers are open and there is no waiting line.

As for the third example used, it is not quite clear what the rationale is in reaching the conclusion that this is not a material change. Is it because the I-526 was approvable when filed and still remains approvable despite the change? Or is it because the change involved a mere change in the type of restaurant? Logically, the rationale applied was the first one, so that even if the business changed from a Chinese restaurant to a car wash, the conclusion would have to be the same. You see how the Training Manual confuses rather than clarify?

Also, the above examples involve only changes that occur while I-526s are pending. In this respect, I have no idea why the 3rd example is considered NOT a material change. Changing type of the restaurant would appear to affect the business plan, so the petitioner should just withdraw the I-526 petition and resubmit it, without suffering too much.

It is in scenarios where there is some change after I-526 petition approval that the petitioners can suffer a lot, and the material change concept has to be justified and defined by USCIS for the purpose of I-829, not for I-526.