What is considered a material change in an EB-5 project?

If the business plan, economic report and the securities offering documents cover a range of investors for the EB-5 raise and the type of business does not change - no material change - then the investors do not have to refile their I-526 petitions.

According to the USCIS training manual, "A petitioner must establish eligibility at the time of filing. The petition may not be approved at a future date after the petitioner becomes eligible under a new set of facts. See Matter of Katigbak, 14 I&N Dec. 45,49 (Comm. 1971). Therefore, a petitioner may not make a material change to a petition that has already been filed in an effort to make an apparently deficient petition conform to Service requirements." For more information on "material change," consult your immigration attorney using your particular facts.

The policy is not as clear as we would like. Changes to business activity, economic models used, project location, may be considered material. Without knowing more, it is hard to tell if this change would be material, but refiling would always be a safer and conservative path to take.

A “material change” has been defined by USCIS as one having facts that have “a natural tendency to influence or are predictably capable of affecting the decision of the USCIS." Hence, it is a factual determination that requires carefully analysis of the circumstances. A change in the number of investors may or may not be deemed material. Your question seems to minimize the change by asserting that all other conditions of the previously approved project remain the same. Without a closer look at the totality of the circumstances, it is difficult to give a definitive answer. I would sit down with an experienced immigration lawyer in EB-5 and regional center investments, and have him/her take a close look at your project.

The concept of "material change" is not well-defined in EB-5 law. It seems that in the opinion of USCIS, whether the change is material or not depends upon when a change happens, although this interpretation does not make much sense and is not supported in other areas of immigration law. If the change occurs before the investor receives his or her conditional lawful permanent resident status (and the change is considered material), then the investor must file a new I-526. If the change occurs after the investor receives his or her conditional lawful permanent resident status, then the investor does not need to file a new I-526 and can just demonstrate at the I-829 filing stage that the investment has been sustained and the jobs created. I believe that if you ask USCIS today if it is a material change for a regional center project to reduce the number of investors in the project, while keeping the business plan and loan amount the same, the answer would be that they adjudicate each petition on a case by case basis, which is not a helpful answer. More clarity and predictability is needed from the agency on this issue. The best argument to make is to show USCIS that the petition was approvable before the change and it continues to be approvable after the change. Therefore, the change should not be considered material. It is important to focus on the things in the project that are remaining the same and the fact that the investment will be sustained and the jobs will be created.

I would not think that simply because a regional center reduces the number of investors it would in and of itself be a material change unless it would negatively impact the ability to fund and complete the project. Thus, it would not appear that you would need to refile your I-526 petition.

If it does not affect the business plan and the loan amount can still be achieved with the reduced number of investors, I would opine that it is not a material change.

The change in the number of investors needed for a project is not a material change. It is a common occurrence. This change in the number can be due to a host of reasons including but not limited to, developer's receipt of additional funding from other sources such as increased revenue from stock buy back, sales of other assets, or loans, just to name a few.

Material change prior to the approval of the I-526 is not permitted, but there is some flexibility after approval of an I-526. Generally, if there are material changes to a Form I-526 at any time after filing, the petition cannot be approved. Under these circumstances, if, at the time of adjudication, the petitioner is asserting eligibility under a materially different set of facts that did not exist when the petition was filed, he or she must file a new Form I-526 petition. While changed circumstances after the investor has been admitted in conditional lawful permanent resident status may not require the filing of an amended Form I-526 petition in order for the investor to proceed with and obtain an approval of a Form I-829 petition, changed circumstances which are material may prevent deference from being accorded to the prior determination and a more extensive review will need to be conducted at the Form I-829 stage. It might be possible to show there is no material change if the regional center's project reduces the number of investors in the project, but there are numerous factors, including proving viability of income from other sources such that the project can be completed.