What is the definition of a “material change” in an EB-5 project? If, for example, I invest in a Chinese restaurant, then in an RFE it reveals that I decided to change it to an Italian restaurant, will this be considered a material change? To what extent can my project deviate from my business plan before it becomes a material change? Is there any official document that I could use as reference? Would any of the following be considered as a material change: change of project developer, change of business plan, or change of business type?
Answers
Lynne Feldman
Immigration AttorneysUnfortunately, this is one of those "we know it when we see it" determinations by USCIS. In your example, if everything else in the business plan is staying the same and you are just changing the type of food to be served, then I would not think this would be a material change. It is important to keep the business plan somewhat flexible.
John J Downey
Immigration AttorneysIt is fairly subjective, but a change from a Chinese to Italian restaurant would not appear to be a material change. Change of business plan or business type would be more problematic.
Salvatore Picataggio
Immigration AttorneysThe definition of "material change," to me, is more concerned with changes to the EB-5 investment structure and major changes to the business activity. In your example, the business is still a restaurant, even though the cuisine changed. If the restaurant changed to an auto body shop, we would have some material change. Similarly, if you changed locations, economic methodology, investment amounts, or uses of funds, you may have material change.
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