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What constitutes a material change in an EB-5 project?

The specific nature of a material change within the EB-5 program is something of a mystery—United States Citizenship and Immigration Services (USCIS) determines what constitutes a material change on a case-by-case basis. However, significant changes to the investment structure, business activity, location, economic methodology, or uses of funds are likely to be seen as material changes.

USCIS may deny a visa petition if a material change takes place after the petition has been filed but before its adjudication. For instance, suppose that an investor files an I-526 petition associated with an EB-5 restaurant venture but later decides to develop a hotel instead. This investor also chooses to invest in a different regional center or in a different job-creating entity (JCE) within the same regional center. All of these are significant changes to the scope of the EB-5 project, so they would be considered as material changes. The investor’s Form I-526 would most likely be denied. Other potential material changes include alterations to the project’s timing, employment structure, investment structure, or capital sourcing.

Material changes can also result in the denial of an EB-5 investor’s I-829 petition, which must show USCIS that the investment complied with all the applicable regulations, including the job creation and at-risk requirements. Still, material changes may not necessarily result in a petition denial—for instance, USCIS is unlikely to deny an I-829 petition if the EB-5 project made every reasonable effort to carry out the business plan submitted with Form I-526.

To avoid potentially disastrous material changes to their projects, potential EB-5 investors should thoroughly examine every investment opportunity to ensure that it can carry out its business plan. The project’s operations during an investor’s conditional permanent residence are especially crucial and might determine whether Form I-829 is approved. Moreover, investors should work closely with their immigration attorney to file a comprehensive I-526 petition.