I often speak with clients who are ready to proceed with implementing a new project under the auspices of their regional center or adopting a project from an outside developer or organization. However, in most instances they are unaware that they may need to file an amendment to their regional center designation before they can proceed.
There have even been instances of certain regional centers who have been unaware of this requirement and have had investors file EB-5 petitions only to later learn that in order to proceed with the instant project, an amendment was required. Unfortunately, in these cases, while an I-924 amendment request can certainly be filed, the pending I-526 petitions filed prior to the amendment request will be denied for failing to be “approvable when filed.”
The following is a list of circumstances that warrant an amendment request:
1. Change or expansion in the geographic area of a regional center
2. Change in the organizational structure, administration or ownership of a regional center
3. Change in economic model- for example switching from IMPLAN to RIMS II for a new project
4. Change or addition of new NAICS industries. For example a regional center that was approved for construction and the hotel industry that now wants to expand with the addition of a new project into the construction of casino hotels or office buildings which are different NAICS codes.
5. Change in a business plan for a previously approved project. If the project has not yet begun operations then an amendment is all that is needed to proceed with subscription of investors once it is approved. If the project began but has since materially changed in scope not only is an amendment required but investors with either pending EB-5 petitions or those who have already attained conditional lawful permanent resident status will need to file EB-5 petitions anew. Not only will this mean that they will need to restart their two year period of conditional residence upon approval of the second adjustment of status (green card) application but so will their dependents. This can have serious implications for children of investors who have turned twenty-one years old since the filing of the original EB-5. They would now be ineligible to re-adjust status with the investor, as they will have aged out.
Regional centers can also file amendment requests concurrently with requests for project pre-approval, known as an exemplar filing. This filing will allow USCIS to issue a preliminary determination of the project’s compliance with applicable EB-5 requirements prior to individual investors filing their EB-5 petitions. While USCIS has not always adhered to the policy of giving “deference” to project pre-approvals per the December 2009 Neufeld memorandum, it is nonetheless a valuable marketing tool for regional centers to have when going to market.