EB5 Investors Magazine "Top 25 Awards Edition" Volume 8 Issue 1 - Page 84

• The plan goes beyond “mere conclusor y asser tions” to show that projections are not merely speculative. • The plan shows that the business “is feasible and has the potential for long-term survival.” • The plan is “comprehensive,” as defined by a paragraph summar y of t ypical business plan content from business description and market analysis down to s taf f ing re quire me nts and income projections. • “Most impor tantly, the business plan must be credible.” 2 When an RFE says “USCIS finds that the evidence in the record does not establish that the business plan is Matter of Ho compliant,” it means that USCIS has found that the evidence does not sufficiently validate job creation projections. Addressing that deficiency means adding detail and evidence about the nature and timing of job- creating activities. That may be as simple as providing a status update to show how the project has progressed since I-526 filing. 3 Additionally, the RFE response can address any USCIS questions and concerns about the original I-526 business plan. D. IDENTIFY ALL QUESTIONS THAT BEAR ON THE BUSINESS PLAN Because the EB -5 business plan exists primarily to justify claims about job creation, business plan-related questions will mainly appear in the RFE section titled “Job Creation.” However, watch for questions in other sections that might need to be addressed in a business plan update. Other RFE headings that could implicate business plan content: New Commercial Enterprise, Capital at Risk, Actual Undertaking of Business Activity, and Capital Made Available to the Business(es) Most Closely Responsible for Job Creation. II. STRATEGIES FOR ANSWERING BUSINESS PLAN RELATED RFE QUESTIONS Once having identified and understood relevant questions about the I-526 business plan, the RFE response can simply answer them, right? Not so fast. RFEs demand additional evidence, but also place restrictions on that evidence. The issue of “material change” must shape the RFE response and EB-5 business plan updates. The “Conclusion” section of each I -526 RFE reminds petitioners of the peril in submit ting new information and documents. 84 EB5 INVESTORS MAGAZINE If Petitioner submits updated or revised documents, please note that “ [a] petitioner must establish eligibility at the time of filing; a petition cannot be approved at a future date after the petitioner becomes eligibility under a new set of facts. See Matter of Katigbak, 14 I&N Dec. 45, 49 (Comm. 1971). T h e r e fo r e , a p e t i t i o n e r m ay n o t m a ke material changes to a petition that has already been filed in an effort to make an apparently deficient petition conform to [USCIS] requirements.” Matter of Izummi, 22 I&N Dec. 169, 175 (Assoc. Comm’r 1998); see also 8 C.F.R 103.2(b)(1). Matter of Izummi gives the example of a business that submitted a plan to qualify as a “troubled business” but did not qualify as such. The petitioner tried to rectify the proble m by submit ting a “comple tely dif fe re nt business plan.” The Administrative Appeals Unit found that “acceptance of the new business plan at such a late date w a s i m p r o p e r a n d e r r o n e o u s .” The new business plan was too different from what was originally filed with I-526, to the point that it changed the grounds for eligibility. “ I f c o u n s e l h a d w i s h e d to te s t the validit y of the newes t plan , which is materially different from the original plan, he should have withdrawn the instant petition and advised the petitioner to file a new Form I-526.” 4 "RFEs demand additional evidence, but also place restrictions on that evidence. The issue of “material change” must shape the RFE response and EB-5 business plan updates"