EB5 Investors Magazine "Top 25 Awards Edition" Volume 8 Issue 1 | Page 85

Assuming that a petitioner does not want to start over with a new I -526 petition, he or she must avoid the Izummi pitfalls in RFE response. Any business plan update should emphasize basic continuit y with the original I-526 filing, describe changed circumstances while showing that the changes do not affect the I-526 decision, and generally support a conclusion that the I-526 was approvable at the time of filing and remains approvable to this day, as updated and clarified. A . U N D E R S TA N D W H AT K I N D O F C H A N G E I S “MATERIAL” To avoid the material change pitfall, understand what flags a change as “material.” The USCIS Policy Manual chapter on I - 526 petitions states that “A change is material if the changed circumstances would have a natural tendency to influence or are predictably capable of affecting the decision.” By contrast, “Changes that occur in accordance with a business plan and other suppor ting documents as filed will generally not be considered material.” 5 As at torney Ron Klasko puts it, “A material change should be a change that makes an approvable project un-approvable, or makes an un- approvable project approvable.” 6 For example, suppose that the schedule for an investment project has changed. The I-526 business plan prepared in 2018 projected that construction would be completed in 2020, but as of 2021 construction has not even begun. Is this a material change? It depends on whether the schedule change affects EB-5 eligibility. If the project is not only delayed but apparently risks never starting construction, then the EB-5 investment risks never creating jobs. Investor eligibility depends on prospective job creation, so delay is material when it undermines job creation potential. On the other hand, perhaps the RFE response can provide evidence that the project is currently on track and can still expect to complete job-creating activities within the investor’s timeline, despite initial explainable delays. In that case, job creation potential remains intact despite the schedule change, and delays become immaterial to EB-5 eligibility. The immigration lawyer leading the RFE response should examine RFE concerns about the business plan, review business plan changes that have in fact occurred since I-526 filing and help to flag avoidable and unavoidable material change issues. B. USE EFFECTIVE PRESENTATION TO INTERPRET CHANGES When the I -526 RFE states that “ the evidence in the record does not establish that the business plan is Matter of Ho compliant,” the RFE does not specify a format for response. The petitioner has three basic options in response to business plan questions from USCIS: (1) simply submit a collection of the evidence documents specifically requested in the RFE; (2) submit a new business plan designed to be Matter of Ho compliant; (3) submit a business plan addendum that presents updates to the original I-526 business plan and discusses new evidence. EB5INVESTORS.COM 85