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The EB-5 investor visa for foreign immigrant investors has never been so highly sought after as a path to a green card and, potentially, citizenship. The reasons for the explosion in demand are numerous, but regardless of these motivating factors, the end result for intending immigrants has been uneven and rather unpredictable. In light of the record number of individuals applying for the EB-5 visa, on August 10, 2015 the United States Citizen and Immigration Services (USCIS) issued a proposed Policy Memorandum regarding a number of considerations and factors that must be satisfied to qualify and remain eligible for the benefits of the EB-5.

One of these areas recognized by USCIS is the impact of material changes to the circumstances or facts surrounding the EB-5 immigrant’s investment. USCIS recognizes that an immigrant investor may not have control over all of these factors but changes may nevertheless affect the individual’s continued eligibility for the visa and its benefits. One particular scenario where this can become an issue is where the time frame between approval of the immigrant’s I-526 petition and his or her subsequent admission to the United States takes significantly longer than the six months which is typical. Whether an individual has obtained conditional permanent resident status prior to or following the material change can be determinative as to whether he or she remains eligible for the EB-5 visa.

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EB-5 Investors Who Have Yet to Achieve Conditional Legal Permanent Residence

If material changes occur following the filing of the I-526 petition but prior to the immigrant investor’s obtainment of conditional green card status in a direct investment, the material change may well result in the intending immigrant’s ineligibility for the EB-5 visa under the currently filed plan. The reason for such a determination is that the I-526 process initially tests the validity and sufficiency of the EB-5 investment. When there is a material change to the plan, it is no longer known if the new plan would satisfy all legal requirements. Material changes that occur in this manner can serve as sufficient and good cause for the USCIS to issue a notice of intent to revoke.

However this still leaves the question of what constitutes a material change. A material change is not a change that occurs as part of a business or investment plan. That is, if ten jobs are created in accord with the business plan during this period, such changes would not be considered material.  In contrast,  if an intending immigrant sets forth a business plan that is based on the creation of jobs through a certain type of economic activity but the type of commercial activity changes prior to conditional permanent resident status, there is at least some likelihood that the petition will be rejected due to what may be interpreted as a material change.  But if the planned economic activity occurs for a time and the requisite number of jobs are created, typically, a business may then redeploy its capital to other “at risk activities” such as an expansion of the business in scope or entry into a new industry. Essentially, the intending immigrant must assert his or her eligibility under the same set of material facts as set forth in the I-526 petition.

Immigrant Investors Who Have Achieved Conditional Green Card Status

USCIS has clarified that the agency will continue to permit individuals who have been admitted to the United States and have achieved conditional permanent resident status to remove the conditions that come attached to his or her green card when circumstances change provided that certain facts are true.  The immigrant must be able to show the I-526 was filed in good faith. Furthermore, the immigrant must show that he or she fully intended to carry of the plan set forth in the petition. If the immigrant fails to make such a showing USCIS retains the right to conclude that the investment was made for the purposes of evading the immigration laws of the United States. When USCIS concludes that such conduct has occurred, it may move to terminate the immigrant’s conditional permanent resident status.

Rely on Our EB-5 Visa Experience

In recent years the EB-5 visa program has been successful and flourished beyond the wildest dreams of its framers. The visa is a win-win providing significant benefits to both the intending immigrant and the United States. If you have questions or concerns regarding the EB-5 and how the record demand might affect your ability to immigrate to the United States contact the experienced Tampa employment visa lawyers of Colombo & Hurd today by calling 800-659-7142 on contact one of our dedicated immigration lawyers online.

Rusten Hurd

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