Material Change

The process of establishing a new eb 5 business and creating jobs depends on a wide array of variables over which an investor or the creator of a new business may not have any control. The very best of business plans may be thrown off, for example, because of a sudden lack of supply in required merchandise or an unexpected hurricane that devastates an area in which the new business was to be built.

The effect of changed business plans on a regional center or an individual eb 5 investor’s immigration status may differ depending on when the change is made relative to the various petitions the regional center or the individual investor have filed.

It is well established that in eb 5 visa petition proceedings, a petitioner must establish eligibility at the time of filing and that a petition cannot be approved if, after filing, the petitioner becomes eligible under a new set of facts or circumstances. Matter of Katigbak, 14 I&N Dec. 45, 49 (Comm. 1971); Matter of Izummi, 22 I&N Dec. at 175 (“a petitioner may not make material changes to a petition that has already been filed in an effort to make an apparently deficient petition conform to Service requirements”).

Taken from USCIS Policy Memorandum regarding EB-5 Adjudications Policy on November 9, 2011.