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 Co-Chairs the Immigration & Compliance Practice. She focuses her practice on business immigration and compliance. She represents clients in a wide-range of employment based immigrant and non-immigrant visa matters including students, trainees, professionals, managers and executives, artists and entertainers, treaty investors

Kate Kalmykov Co-Chairs the Immigration & Compliance Practice. She focuses her practice on business immigration and compliance. She represents clients in a wide-range of employment based immigrant and non-immigrant visa matters including students, trainees, professionals, managers and executives, artists and entertainers, treaty investors and traders, persons of extraordinary ability and immigrant investors.

Kate has deep experience working on EB-5 immigrant investor matters. She regularly works with developers across a variety of industries, as well as private equity funds on developing new projects that qualify for EB-5 investments. This includes creation of new Regional Centers, having projects adopted by existing Regional Centers or through pooled individual EB-5 petitions. For existing Regional Centers, Kate regularly helps to prepare amendment filings, file exemplar petitions, address removal of conditions issues and ensure that they develop an internal program for ongoing compliance with applicable immigration regulations and guidance. She also counsels foreign nationals on obtaining greencards through either individual or Regional Center EB-5 investments, as well as issues related to I-829 Removal of Conditions.

Kate also works with various human resources departments on I-9 employment verification matters as well as H-1B and LCA compliance. She regularly counsels employers on due diligence issues including internal audits and reviews, as well as minimization of exposure and liabilities in government investigations.