As noted in our analysis of the May 30th EB-5 memorandum, the new policy guidance is extremely favorable towards regional centers with respect to when an amendment does NOT need to be filed. Specifically, in its memorandum the USCIS notes that an amendment is not required when there is:
- A change or expansion in the geographical area of a Regional Center;
- A change in the economic model that the Regional Center uses- for example switching from IMPLAN to RIMS II for a new project;
- Change or addition of new NAICS industry code(s) to develop a new type of project for which the Regional Center has not been previously approved for;
- Change in a business plan for a previously approved project. (Additionally, this applies if there is a material change after the project has begun. New I-526s do not need to be filed.)
However, there is one glaring omission in the guidance- is an amendment still required to be filed when there is a change in the organizational structure, administration or ownership of a Regional Center? Generally, in immigration law, weight is accorded to varying sources of law in the following order:
- Precedent Case Law
- Binding Policy Guidance in the form of USCIS memos and
- Non-Binding policy guidance including USCIS memos and letters
The binding policy guidance issued by the USCIS on EB-5 notes that “prior policy guidance, to the extent it does not conflict with this PM, remains valid unless and until rescinded.” Since the issue of whether or not ownership changes in the context of regional centers requires an amendment is not addressed in the new memorandum, practioners must ostensibly refer to the last place where it was addressed- the instructions of the Form I-924, “Application for Regional Center Under the Immigrant Investor Pilot Program”, as these instructions carry the weight of USCIS’ regulations per 8 C.F.R. 103.2(a)(1). In the instructions for Form I-924, USCIS provides that that an amendment may be filed where there “are changes to a Regional Center’s… organizational structure or administration.” This language indicates that such changes require an amendment, seemingly stating that such changes are not only permitted but are recommended. The instructions therefore, prescribe a process for amending a designation when there is a change in ownership. In my practice over the years, such changes have been approved many times as well.
However, it appears that USCIS may have purposefully chosen not to eliminate the amendment process in its new memorandum. A slew of recent regional center approval letters contain language that specifically notes that the designation that is issued to the original applicant is non-transferable, implying that sales of Regional Centers are not permitted. This may perhaps be a sign that USCIS is uncomfortable with the sale of Regional Centers because it chooses to perform background checks on applicants as well as monitor them post- approval to ensure compliance with EB-5 program requirements. A scenario in which a sale is completed without USCIS first vetting the purchaser circumvents the ability of USCIS to perform these checks. However, regulations (or form instructions which carry the weight of the regulations) trump the weight of the approval notice language. Attempts to change the rules with respect to the ability to change Regional Center ownership by administrative fiat i.e. issuance of the approval notice is ultra vires and impermissible. Should USCIS have chosen to eliminate the sale of Regional Centers- it should have done that in the new guidance rather than through the issuance of approval notices. Therefore, at present, in the absence of clear guidance, this issue remains a grey area and, pending clarification from USCIS, purchasers of Regional Centers should be wary of the risks of Service denial of such requests.