Changing Business Plans

In many cases, for various reasons, after an EB-5 visa applicant has already filed a Form I-526 petition with U.S. Citizenship and Immigration Services (USCIS), the alien investor would like to change the business plan he or she originally submitted.

Are EB-5 petitioners in this situation forced to file a new I-526?

Material Change

The answer to this question hinges on the nature of the changes the alien would like to make. A USCIS policy memorandum clarifies that material changes to the original business plan, as opposed to minor tweaks to it, may impact a petitioner’s already filed I-526 application.

An approved I-526 petition serves as the basis for approval of an alien investor’s Form I-829 petition. As noted on the EB-5 application process webpage, the intermediate step between submitting Forms I-526 and I-829 is obtaining conditional permanent resident status. For this reason, two situations merit elaboration: when an EB-5 investor has not yet obtained conditional permanent resident status, and when an EB-5 investor has obtained a conditional green card.

Investors without Conditional Permanent Resident Status

In general, material changes made to an investor’s business plan after filing Form I-526 will result in the petitioner’s ineligibility if he or she has not yet obtained conditional permanent residency. If USCIS has approved said petitioner’s I-526, then material changes to the business plan are likely to result in USCIS issuing a notice of intent to revoke the I-526. In this situation, the alien investor would have to file a new Form I-526 reflecting the changes to the original business plan.

There’s a caveat to the above, however. Let’s say a petitioner who directly invested in a new commercial enterprise (NCE) and adhered to her original business plan successfully created 10 full-time jobs for qualifying U.S. workers prior to obtaining conditional permanent resident status. Because the NCE hosted commercial activities conforming to the original business plan and already satisfied the job creation requirement, she would subsequently be allowed to deviate from the original business plan and, for instance, redeploy capital into another at-risk activity. Similarly, in the regional center context, if the job requirement is satisfied before an investor obtains conditional permanent residency, then such material changes to the originally submitted business plan as a redeployment of capital would not be considered a “material change” meriting ineligibility or revocation of an approved I-526.

Investors with Conditional Permanent Resident Status

According to USCIS, a petitioner with a conditional green card is still eligible to file a Form I-829 petition in spite of any changes to the original business plan submitted in his or her I-526 as long as the petitioner can demonstrate that “the Form I-526 was filed in good faith and with full intention to follow the plan outlined in that petition.” If an investor is unable to demonstrate this, then USCIS may terminate his or her conditional status.

Filing a New I-526 Petition

EB-5 investors choosing or otherwise required to file new I-526s reflecting material changes to their originally submitted business plans should be aware of the following three points:

  1. If the new I-526 is filed before the investor adjusts status or obtains an immigrant visa, then the new I-526 will serve as the basis for approval of the subsequently filed I-829.

  2. If the new I-526 is filed after the investor adjusts status or obtains an immigrant visabut before the investor must file an I-829 petition, the investor should file Form I-407 with a new Form I-485application. Upon receipt of these forms, USCIS will terminate the investor’s previously awarded conditional status, and if the I-485 is approved, the investor will obtain a new two-year conditional status. The new I-526 will thereafter serve as the basis for approval of the subsequently filed I-829.

  3. If the new I-526 is filed either after the investor adjusts status or after the investor files an I-829 petition, and the new I-526 petition is approved, the investor can request USCIS to withdraw his or her initial form I-829 and file a new I-485 application. If the new I-485 is approved, the investor will obtain a new two-year conditional status, and the new I-526 will thereafter serve as the basis for approval of the subsequently filed I-829. If the new I-526 is denied, however, then the initial I-526 will serve as the basis for the subsequently filed I-829.

A Note on Investments in Targeted Employment Areas

USCIS has acknowledged that EB-5 applicants investing their capital in a targeted employment area(TEA)—i.e. a rural or high unemployment area—often commit their funds before they file their I-526 petitions. Investors who do so should understand that they alone have the burden of proving that the area receiving their investment qualified as a TEA at the time they supplied their investment.

In some cases, by the time EB-5 applicants are able to file their I-829 petitions, the area of their investment may cease to qualify as a TEA. Fortunately, because job creation is the main goal of the EB-5 program, changes in population size or unemployment rates in a previously qualifying TEA are not grounds to deny an I-829 application.

For more detailed information about the EB-5 visa, refer to the following links:

Updated 06/09/2017