My I-526 application was just approved. Yesterday I was informed that the EB-5 project I invested in has failed due to local restrictions on construction. Is it possible to have my money transferred to a new project of the same regional center, but keep my priority date? If not, what is the best solution for me now?
Best to immediately consult with EB-5 counsel. Since you haven't received CPR yet, there's a real danger that switching now will be considered a material change and you may lose your priority date. Go through the proposed transfer carefully with both your attorney and the RC's EB-5 project counsel to clearly outline their plan and determine if it will endanger your case.
This would require a new I-526 petition filing with a new priority date.
Possibly. Your investment may be transferred to another project with the same industry code, under the regional center, in which there is no material change. Everything is the same as stated in the original business plan and economic report. On this basis, you may argue to keep the same priority date.
You will need to consult with an experienced EB-5 immigration attorney. Typically, changes in EB-5 projects that occur prior to conditional green card approval will be considered material changes by USCIS. Such change likely will require the filing of a new I-526 petition and a new priority date under current law.
Without the two projects working together, and one taking over the other, it is hard under the current rules to save the priority date unless you have already landed with your green card
It may be possible to have your funds transferred from one EB-5 project, assuming you can recoup same into a new project in the same regional center. But it is likely to require a new EB-5 petition on Form I-526 and you will not be able to keep your priority date. The sooner you file, the sooner you will get a new EB-5 priority date. You can only keep your priority date if you can keep your funds in the existing project in which you invested through the I-829 stage to remove conditional permanent residency.
This is a tough situation and likely subject to a material change finding (I-526 un-approvable as project lacks proper construction permits), which can result in a revocation of the I-526. The redeployment of funds should probably be done at a project level. Either way, you need to work with your I-526 attorney (and if she/he represents the regional center, then find a lawyer to represent you immediately) and the regional center.
You may have to withdraw your investment and put it in a new EB-5 project. However, you cannot keep your priority date, as you are starting all over again as facts, figures, project and other related issues will be different from the abandoned/failed project.
Unfortunately, a new project would mean new filing and loss of the priority date. EB-5 cases do not have a mechanism for retaining the old priority date like in an I-140 situation. If the new project could be at the same geographical location, and the same developer with the same business plan as the old one, one could argue that there is no material change. However, I highly doubt it will work, as it is a brand new and different project. Having the same regional center is not the controlling issue.
I am not aware of any mechanism that would allow you to keep your priority date. Your I-526 was approved based on a specific project. If you can no longer continue based on that project then you might have to start all over again. Of course, by all means have your attorney investigate your rights under this application to get your money back, but your options might be limited short of starting with a new project. If you could get your money back, or at least some of it, you could use that to fund the new EB-5 investment. Otherwise, you might have to bring fresh funds.
Unfortunately, there is currently no mechanism to retain your priority date if you transfer to a new project if you have not yet received your conditional green card. In the past there have been some proposals to change the law or regulations to allow priority date retention in certain, limited cases, but none of these proposals have been enacted. It is unlikely that the EB-5 law will be amended before Sept. 30, 2019. USCIS had proposed implementing new regulations this year. However, it appears that those regulations are substantially delayed and are likely to come at the end of the year, at the earliest. It is not clear if the final regulations will contain the priority date retention provisions.
Right now there is no ability for priority date retention in cases like this, though new regulations want to fix that.
Sometimes the NCE into which you have invested can transfer the funds into a new JCE. If the change in the business plan occurs after a green card approval, then the need to report it does not arise until the I-829 stage. At the time of filing the I-829 the changes that had to be made can be outlined in detail.
If you can get your money back, you can try to invest it in a new project.
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