FY2014 Q2 EB-5 Petition Data, Material Change AAO Decisions, New RCs (AR, CA, CT, DC, FL, ID, IL, IN, MD, MI, NJ, NV, NY, PA, TN, TX, VA, WV, UT, WI)

The USCIS Immigration and Citizenship Data page has been updated again with data for I-526 and I-829 Petitions processed in the second quarter of Fiscal Year 2014 (January to March). Once again, here are my little charts illustrating how the numbers compare with previous quarters.
1526q2 I829q2
I-526 processing volumes show modest increase overall, but below last quarter’s spike and still nowhere near Mr. Colucci’s goal of having the number of processed petitions at least exceed the number of petitions received each week. I-829s, on the other hand, flew off the shelf in Q2 – maybe because they’re all the California EB-5 team has to work on as of February? We’ll see how the processing story continues to unfold in coming quarters.

USCIS continues to post 2014 Administrative Appeals Office decisions on EB-5 cases. APR232014_01B7203 and MAY122014_01B7203 are interesting as case studies of the much-misunderstood material change issue. People tend to panic that “material change” means that one can’t at any time deviate from any point of a business plan submitted to USCIS. The May 30, 2013 EB-5 Policy Memo and Matter of Izummi don’t say that, however. USCIS policy focuses on the period prior to I-526 approval and the problem of petitioners who, having filed an I-526 Petition that doesn’t demonstrate eligibility for EB-5 visa benefits, respond to Requests for Evidence with a new set of facts, materially changing the proposal under which the original petition attempted to qualify. The USCIS position is that the petitioner must demonstrate eligibility for the visa petition at the time filing, the petitioner cannot secure a priority date based on future events, and USCIS cannot consider facts that only came into being subsequent to the filing of the petition. For example, the petitioner in APR232014_01B7203 invested through a loan model with indirect job creation, which a non-Regional Center investor may not do, and then, in response to an RFE, tried to change track and present USCIS with a new and different business structure and investment terms. The AAO agreed that: “Purchase and termination of ___ in response to the director’s request for evidence in order to meet the direct job creation requirements reflects a material deviation from the business structure claimed at the initial filing of the petition. The business structure change constitutes an effort to make an apparently deficient petition conform to users and regulatory requirements. Therefore, users must analyze the petition only on the basis of the original claims.” In the MAY122014_01B7203 case, the petitioner’s problem was that “at the time of filing, he had invested only $105,000 and had not, at that time, properly committed the balance of the required investment with a secured note or agreement.” The moral of the material change story is to get your ducks in a row before filing an I-526 Petition. Don’t just throw something together and file it, assuming that the worst case scenario is that USCIS will send Requests for Evidence giving you a chance to go back and forth supplying new information and fixing problems until the petition is finally approvable. The worst case scenario is that the content of that original I-526 would need such material changes to become approvable that USCIS will say (to paraphrase): Forget it. This filing was crap, and if you have new facts and a new story now then you can go back to square one and file a new petition for us to consider. (For the official statement, see pages 24 to 27 of the EB-5 Adjudications Policy memo.)

The USCIS Regional Center list continues to expand by leaps and bounds, reflecting hard work by the USCIS Investor Program Office and adding to a crowded field. We’re continuing to see many multi-state RCs and many RCs associated with operators who control multiple RCs.

Additions to the USCIS Regional Center List 5/6/2014 to 5/27/2014

About Suzanne (www.lucidtext.com)
Suzanne Lazicki is a business plan writer, EB-5 expert, and founder of Lucid Professional Writing. Contact me at suzanne@lucidtext.com (626) 660-4030.

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