Part V of Cautions About EB-5 Policy Changes


by

Joseph Whalen






Part V of Cautions About EB-5 Policy Changes



By Joseph P. Whalen (June 4, 2013)



The Memo states that most changes will no longer require an amendment but it appears that certain types of changes will demand an
amendment.



B. Regional Center Amendments



Because businesses strategies constantly evolve, with new opportunities identified and existing plans improved, the instructions to Form I-924 provide that
a regional center may amend a previously-approved designation. The Form I-924 provides a list of acceptable amendments, to include
changes to organizational structure or administration, capital investment projects (including changes in
the economic analysis and underlying business plan used to estimate job creation for previously-approved investment opportunities), and an affiliated commercial enterprise’s organizational structure, capital investment instruments or offering memoranda.



Such formal amendments to the regional center designation, however,are not required when a regional center changes its industries of focus, itsgeographic boundaries, its business plans, or its economic methodologies. Aregional center may elect to pursue an amendment if it seeks certainty in advance that such changes will be permissible to USCIS before they are adjudicated at the I-526 stage, but the regional
center is not required to do so. Of course, all regional centers “must provide updated information to demonstrate the center is
continuing to promote economic growth, improved regional productivity, job creation, or increased domestic capital investment in the approved geographic
area . . . on an annual basis,” 8 C.F.R. § 204.6(m)(6), through the filing of their annual Form I-924A.” At pp. 22-23



As stated above, only certain types of changes require an amendment and those that do not require such an amendment are amenable to an optional and
voluntary amendment. Why would someone file an I-924 amendment when not required? This is done to gain deference from USCIS or a higher degree of certainty in the projects they market to EB-5 investors. So, there
appear to be limited circumstances that demand an amendment while the majority would be optional. It depends on if the RC wants to maintain deference or chance it at the I-526 stage.





































Requires Mandatory Amendment




Amendment is Not Required, But No Deference for I-526s




Amendment is Optional, If Seeking Deference for I-526s




Involving Changes to:




Involving Changes to:




Involving Changes to:




Regional Center’s organizational structure;




Regional Center’s industries of focus; i.e. NAICS Codes.




Regional Center’s industries of focus; i.e. NAICS Codes




Regional Center’s



administration; this mean one cannot buy a RC!




Regional Center’s geographic boundaries; but it must still result in a “contiguous area”.




Regional Center’s geographic boundaries; but it must still result in a “contiguous area”.




IF continued deference is sought:
capital investment instruments or offering memoranda





Regional Center’s business plans must be Matter of Ho compliant when filed with the investors’ I-526 Petitions but this will
result in a “crap shoot”, a “gamble” without any certainty.





Regional Center’s business plans must be Matter of Ho compliant when filed with the investors’ I-526 Petitions and this will
answer that question in advance of filing real I-526s




IF continued deference is sought:

capital investment projects (including changes in the economic analysis and underlying business plan used to estimate job
creation for previously- approved investment opportunities)





Regional Center’s economic methodologies which form the basis of “reasonable methodologies to predict indirect jobs”. Any prior
deference may be eroded or completely nullified. Each I-526 or at least the first I-526 in a group will be reviewed de novo.
If anything is wrong, expect denial. Such denial will guide a second filing and will require going to the end of processing queue.





Regional Center’s economic methodologies which form the basis of “reasonable methodologies to predict indirect jobs”. Any prior
deference may be eroded or completely nullified.




A new deference determination will be made at the I-924 Amendment as an I-526 Exemplar stage. This application may be perfected after
filing and then deference can be extended to real I-526s.




That’s my two-cents, for now.





About The Author




Joseph Whalen is not an attorney. He is a former government employee who is familiar with the INA. His education is in Anthroplogy with a concentration in Archaeology and has both a BA (from SUNY Buffalo) and an MA (from San Francisco State University) in Anthroplogogy. He previously worked as an Archaeologist for the U.S. Forest Service before becoming an Adjudicator with INS which became USCIS.






The opinions expressed in this article are those of the author(s) alone and should not be imputed to ILW.COM.