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[HOT] [Q] What is the concept of "material change" in context of EB-5 cases?


The concept of "material change" always existed in a factual context where immigrant petitions, including I-526s, were pending and not yet adjudicated. In essence, the "material change" concept prohibited an immigration petition which did not comply with the requirements for approval of the immigrant petition from being approved through a fix of the deficiency while the immigrant petition was filed, pending and not yet adjudicated. For example, in context of a U.S. citizen filing I-130 immigrant petition for his alien spouse, if the U.S. citizen petitioner was still married to another woman at the time of filing I-130, then legally, the I-130 cannot be approved. And if the U.S. citizen obtains a divorce during pendency so that the I-130 would now be approvable, the pending I-130 would have to be withdrawn and refiled because there had been a "material change" regarding the specific requirements for the approval of I-130. This concept is very simple and based on common sense; and is represented by Katigbak and Matter of Izumii case.

However, USCIS has -- in our opinion, unlawfully and mistakenly -- morphed this simple concept of "material change" to govern a totally different factual scenario where an I-526 petition has already been approved. Katigbak and Izummi simply do not govern or apply to an I-829 scenario where the I-526 has already been approved. If I-526 has already been approved without misrepresentation, the specific I-829 requirements must control and decide the I-829 conditions removal petition. Otherwise, why have the specific I-829 requirements at all? Now, if anyone disagrees with me up to this point, then there is no possibility that we will agree on further logical conclusions to be drawn.

In some sense, USCIS was forced to come up with this unlawful and mistaken reinterpretation of the concept of "material change" because of another wrong analysis USCIS reached regarding the holding of the 9th Circuit Chang case. The Chang case held that in context of I-829 petition, the petitioner has the right to rely that the I-829 petition will be approved if the terms of I-526 have been followed through. Basically, the Chang court held that USCIS could not apply the changed EB-5 law (the change occurring after I-526 approval but before I-829 adjudication) to the pending I-829. In other words, USCIS could not retroactively apply the changed EB-5 law to deny I-829 when I-526 had already been approved and the terms of I-526 have been complied with substantially.

Now, in support of its holding, the Chang court said that I-829 cannot be decoupled from I-526. However, it should be noted that the Chang court did not hold that if there has been certain change to the terms of I-526 business plan AFTER I-526 approval, the I-829 petition must necessarily be denied. The Chang court said, if I-526 petition terms have been followed through, the petitioner has the right to expect that I-829 will be approved. But this did not mean that if some aspects of the terms of I-526 petition were altered, I-829 should be necessarily denied. It could be denied, or it could be approved -- depending on whether specific I-829 requirements were still met, despite the change. Otherwise, any minor, small change occurring after I-526 approval, would necessarily doom I-829 petition. And the Chang case certainly never meant to support this absurd result. Therefore, USCIS came up with a proposition that only where there is "material change" after I-526 approval, will I-829 be denied. But this means whether a change is "material" or not depends specifically on whether such change makes it not feasible for the petitioner to meet the specific I-829 requirements. If the I-829 requirements have been met despite the change, how can such change be deemed "material"? This is what I am getting at.

Now, all this must lead to a single question: What is the "material change", as opposed to "immaterial change"? The logic dictates that any change is "material" if such change would lead to the petitioner not being able to meet one or more of the very specific I-829 requirements. By definition, if despite the change, all specific I-829 requirements are met, that change can not be deemed "material".

But that's not USCIS' position on this matter. To date, we have not heard USCIS provide a clear rationale on this issue. We sincerely hope that someone at USCIS will see that their position is not supported by the logic or common sense, and that the "material change" concept has no place in a scenario where I-526 has already been approved, because in deciding whether an I-829 petition should be approved or denied, only the specific I-829 requirements should govern and control. Otherwise, there will be no end to the list of what change is material and immaterial.