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What happens if a project developer does not follow their USCIS-approved EB-5 business plan?

If a project developer does not follow the outline detailed in their USCIS-approved business plan, must they submit and get approval of a new business plan? Would this automatically cause a denial during the I-829 approval process? How far can a project developer deviate from their original plan?

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    Salvatore Picataggio

    Immigration Attorney
    Answered on

    If the changes are "material" then a new business plan would need to be submitted. But "material" changes are pretty big: a change in fact is material if the changed circumstances would have a natural tendency to influence or are predictably capable of affecting the decision (current USCIS policy). However, current policy allows for changes to be made through subsequent I-526 filings. Retaining experienced EB-5 counsel will help you with the requirements and documentation to provide to USCIS.

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    Fredrick W Voigtmann

    Immigration Attorney
    Answered on

    This is a complicated question dealing with material change. "Material change" occurs when the actions of the EB-5 project developer vary too much from the original business plan, such as changing the industry or type of business, or the location of the investment. In the case of a material change before the investor obtains conditional lawful permanent residence, the investor would have to file a new I-526 petition. In the case of a material change after the investor receives his or her conditional green card, but before removing the two-year condition, the investor may proceed with the I-829 petition (to remove the condition), but should be prepared to document how he or she sustained the investment and met the job creation requirement during the two-year conditional period. If there is a material change, then the investor may not rely on the initial business plan and will not benefit from any deference to USCIS'' prior petition approval. The I-829 will not be automatically denied, but it will be reviewed to determine if it meets the requirements of the EB-5 law and regulations.

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    Julia Roussinova

    Immigration Attorney
    Answered on

    This is a complex legal issue. It would generally depend on whether the change is material. You should consult an experienced EB-5 immigration attorney to discuss the specifics of the case.

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    John J Downey

    Immigration Attorney
    Answered on

    Always troublesome to vary from the original plan. It will depend on how large a variance and the reasons for it.

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    Ed Beshara

    Immigration Attorney
    Answered on

    If the developer materially changes the business plan before the investor obtains the conditional permanent residency, then the investor will have to refile the investor''s petition with the new business plan. If the material change occurs after the conditional residency is approved, then the change may have still shown a commitment of funds and the required employment creation. On this basis the I-829 petition could be approved.

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    Lynne Feldman

    Immigration Attorney
    Answered on

    This is a complicated issue and revolves around whether the change is material and when it occurs in the process.

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    Jinhee Wilde

    Immigration Attorney
    Answered on

    The question of how much they could deviate from the approved business plan is a legal question that will be decided on a case-by-case basis. If the project has "materially" changed since I-526 approval, then there is a chance that the I-829 could be denied.

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    Tammy Fox-Isicoff

    Immigration Attorney
    Answered on

    It depends how drastic the deviation is and when it occurs - there is more room for deviation after the adjustment and before the I-829.

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