Under the EB-5 Regional Center Program, once a business plan and investment offering have been approved, the approval not only affects the Regional Center itself but is also to the subsequent Form I-526E Petitions (“Petitions”) filed by EB-5 investors participating in the same offering. The RIA addresses the binding effect of such approvals, the circumstances in which an approval may no longer be binding, and the procedures for amendments when changes are made to an approved investment offering.
Approval of a Business Plan Is Generally Binding
Under the applicable provisions, once an application involving an investment in a Regional Center’s New Commercial Enterprise’s (“NCE”) Form I-965F has been approved, that approval is generally binding for purposes of adjudicating subsequent related Petitions.
This binding effect of the Form I-965F also extends to the I-829 Petition by Investor to Remove Conditions on Permanent Resident Status (“I-829 Petitions”) filed by the same investors under Section 216A of the Immigration and Nationality Act, including subsequent proceedings involving the removal of conditions on permanent resident status.
Five Circumstances in Which a Prior Approval May Not Be Binding
However, a prior Form I-965F approval is not binding under all circumstances. The law specifically identifies five exceptions. If any of the following circumstances apply, subsequent adjudications may no longer be bound by the prior Form I-965F approval:
- Fraud, Misrepresentation, or Criminal Misuse
The applicant engaged in fraud, misrepresentation, or criminal misuse.
- Public Safety or National Security Concerns
If maintaining the Form I-965F approval would threaten public safety or national security, the government may decline to be bound by the approval.
- A Material Change Affecting Eligibility
If there has been a material change to the offering that affects eligibility under the EB-5 program.
- Discovery of Previously Undisclosed Evidence Affecting Eligibility
If other evidence affecting program eligibility is later discovered and that evidence was not disclosed by the applicant during the original adjudication process.
- A Material Mistake of Law or Fact in the Previous Adjudication
If the previous adjudication involved a material mistake of law or fact.
Although Form I-965F approval of a business plan and investment offering generally provides an important basis for subsequent Petitions, the government may reassess program eligibility when one of these circumstances is present.
Amendment Procedures Following Changes to an Investment Offering
In addition to establishing the effect of an existing Form I-965F approval, the law allows procedures to be established for amendments to previously approved applications.
The Secretary of Homeland Security may establish procedures through which a Regional Center may seek approval of an amendment to an approved Form I-965F application. If changes specified by the Secretary are made to information, documents, or other aspects of the investment offering described in the approved application, the Regional Center may seek approval of an amendment reflecting those changes.
Under the provision, the amendment may be submitted no later than 30 days after such changes.
Regional Centers should therefore continue to monitor their investment offerings after Form I-965F approval and determine whether changes to relevant information, documents, or other aspects of the offering require an amendment under the applicable procedures.
Effect of an Approved Amendment on Investor Petitions
If an amendment to an approved Form I-965F application is timely filed and subsequently approved, the changes reflected in that amendment may be incorporated into the determination of continued eligibility under the EB-5 program. This may apply to two categories of Petitions.
First, the approved changes may be considered in pending Petitions filed by EB-5 investors who have invested in the offering described in the approved application and are seeking EB-5 immigrant classification. Accordingly, an approved amendment may be incorporated into the adjudication of investor Petitions that remain pending.
Second, the approved changes may also be considered in I-829 Petitions filed by those same investors under Section 216A of the Immigration and Nationality Act regarding the removal of conditions on an EB-5 investor’s lawful permanent resident status.
For Regional Centers, Form I-965F approval of an investment offering is therefore not necessarily the end of the compliance process. Regional Centers should continue to monitor changes to their investment offerings and address amendments in accordance with applicable requirements to help maintain consistency and program eligibility for the offering and related investor Petitions.
This is part of a series on the EB-5 Reform and Integrity Act of 2022. To read more in this series, click here.