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.

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Photo of Kate Kalmykov Kate Kalmykov

Kate Kalmykov is based in our New York and New Jersey offices and has over two decades of experience in business immigration matters. Kate currently Co-Chairs the Global Immigration & Compliance Practice at Greenberg Traurig. In this role, she works with employers of

Kate Kalmykov is based in our New York and New Jersey offices and has over two decades of experience in business immigration matters. Kate currently Co-Chairs the Global Immigration & Compliance Practice at Greenberg Traurig. In this role, she works with employers of all sizes across a variety of industries in understanding and complying with the immigration laws relating to the hiring and retention of foreign talent. Specifically, her practice focuses on supporting clients and advising them on temporary and permanent residency immigration options for multi-national executive, business, scientific, and information technology personnel. In addition, her practice provides support to companies in the global transfer of personnel. Known by her clients for her out-of-the-box thinking, responsiveness and hands-on approach, Kate is often called upon to assist in developing immigration options and strategies in the most unique circumstances and to respond to complex Requests for Evidence (RFEs), Notices of Intent to Deny (NOIDs) or to appeal denied cases. Likewise, she has also been instrumental in developing employer compliance programs for DOL related filings including H-1Bs and PERMs, as well as for I-9 employment eligibility verification. To this end, she develops and conducts nationwide I-9 compliance trainings and policy manuals for human resources personnel, advises on best practices for E-Verify employers, provides guidance on avoiding immigration-related unfair employment practices claims and has defended and minimized penalties in immigration-related government audits. Kate regularly works with professionals from the firm’s labor, employment, tax and benefits groups, to provide strategic planning on immigration issues within a cross-border framework.

Kate also has deep experience working on all aspects of the EB-5 immigrant investor program. Kate has worked with real estate developers, private equity funds, and other organizations on applications to designate new EB-5 Regional Centers, applications for pre-approval of EB-5 projects; having projects adopted by existing EB-5 Regional Centers; structuring projects to be EB-5 compliant, the sale of existing EB-5 Regional Centers, preparing template I-526 petitions and advice on structuring direct EB-5 projects. Pursuant to the requirements introduced under the EB-5 Reform and Integrity Act, Kate works with EB-5 Regional Centers, EB-5 Projects, Overseas Migration Agents and Broker/ Dealers to develop internal programs for ongoing compliance and to prepare USCIS I-956, I-956F, I-956,G, I-956H, I-956K submissions. Kate has represented thousands of investors in obtaining their green cards through EB-5 regional center projects, as well as direct EB-5 investment opportunities. She also represented and structured the largest EB-5 offering in the Program’s history and has over the course of her career structured over $12 billion in EB-5 deals.

Within the field of immigration law, Kate is a well-known speaker and author. She is often called upon by various media outlets to comment on topics of business immigration law including the Real Deal, the Wall Street Journal, and Law360. Kate has appeared on numerous TV programs related to immigration law including CNN, the Stoler Report, Vietface TV, and China Business Network. Kate is also a prolific writer on the topic of immigration and has been published in immigration practice handbooks for the American Bar Association, American Immigration Lawyers Association, ILW, and in news periodicals that include the New Jersey Lawyer, the New York Law Journal, the New Jersey Law Journal, USA Today, GlobeSt.com, and the Commercial Observer. At the request of the American Bar Association, Kate co-authored the book “What Every Lawyer Needs to Know About Immigration Law,” a guide for non-lawyers on immigration law practice. She has sat on numerous bar association related committees including the American Immigration Lawyers Association EB-5 Practice Committee, the New Jersey Business Immigration Coalition and has chaired the American Bar Association’s, Committee on Immigration and Naturalization, Section of Administrative Law since 2011. Kate has been recognized in various legal surveys including Chambers Global, New York Super Lawyers, the New Jersey Law Journal who ranked as her as a “New Leader of the Bar,” (formerly 40 under 40) in 2012, NJBIZ “Best 50 Women in Business,” 2019, National Law Review, “Go-To Thought Leader: Immigration Law,” 2022, and Lawdragon 500, Leading U.S. Corporate Employment Lawyers, 2020-2022.

Kate is devoted to pro bono matters and has spent extensive time helping clients fleeing conflict and persecution with asylum applications, applying for and obtaining Temporary Protected Status and Humanitarian Parole.