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What is considered a material change in terms of the EB-5 program?

I am unclear on the definition of "material change" in terms of the EB-5 program. Let's say in my original business plan I wanted to open a shopping plaza with 16 stores that included restaurants, laundromat, day care, groceries, etc. However, then I decide to not open the laundromat and day care, and instead open more restaurants in the plaza to make sure the job creation stays the same. Would this be considered a material change? Does USCIS have any articles I can refer to?

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    Karen-Lee Pollak

    Immigration Attorney
    Answered on

    It is on a case by case basis. I do not think your example would be a material change, but would need more facts. If you changed the development from retail to a hospital, that would be a material change. You can look at the USCIS policy memorandum on EB-5 adjudication policy issued in May 2013 and any updates therein which discuss material change.

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    Fredrick W Voigtmann

    Immigration Attorney
    Answered on

    USCIS has not done a very good job in defining what is or is not a "material change." One example of what is not considered a material change comes from the USCIS EB-5 training materials. The example says that if the EB-5 investor originally planned to open a Chinese restaurant, but changed his plans and opened a Peruvian restaurant, then that would not be considered a material change. An example from the USCIS 2013 policy memo says that if a regional center investor changes from investing in one project to a completely different project, that would be considered a material change. The policy memo also says that a material change that occurs after the investor has received his or her conditional lawful permanent resident status would not require a re-filing of a new I-526 petition, while a material change occurring before the investor receives his or her conditional lawful permanent residence would require an I-526 re-filing. In your case, it is important to be as clear as possible in your business plan, but still give yourself some options (list them in the business plan) if you think that changing the types of businesses might occur. Also, keep in mind that your new commercial enterprise must be the direct employer of all of the store employees in your shopping plaza. The employees of your tenants cannot be counted in a direct EB-5 case and might not be able to be counted in a regional center EB-5 case either.

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    Salvatore Picataggio

    Immigration Attorney
    Answered on

    It is unclear to many professionals too! Your hypothetical here would likely not be material change. Changing from a shopping plaza to a charter school would be a material change. Moving it from one state to another would be a material change. Requesting 10 investors at first, and then changing the raise to 100 investors would be as well.

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    John J Downey

    Immigration Attorney
    Answered on

    Per your example that would not be a material change. You can check with a qualified EB-5 attorney to find examples. USCIS does not really give any examples. A "material" change would be one that varies the intent of the project or the amount of investment or job count.

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    Charles Foster

    Immigration Attorney
    Answered on

    There is no definite definition of "material change" and it may be better to err on the side of disclosure.

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    Bernard P Wolfsdorf

    Immigration Attorney
    Answered on

    The May 30th Policy Memo explains this clearly. In a nutshell, material change before approval of the I-526 will ordinarily require refiling of the petition as the basis for the job creation is no longer as was explained in the original filing. Can it be approved, yes. If change happens after approval, and the jobs were still created, it may be easier to get an approval.

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