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responds to the RFE with new information and documentation
showing the material changes to the original, actual EB-5 project.
Please note that this EB-5 project is the basis of the I-526 petition
filed concurrently with this I-924 application. In this example,
the USCIS approves the I-924 application for pre-approval of the
actual project, incorporating the material changes.
In the above circumstances, will this new I-924 pre-approval
allow an approval of the original EB-5 project, as stated in the
I-526 petition, by the EB-5 investor notifying the I-526 adjudicator of the I-924 pre-approval which is now incorporating
the new material changes? Or, will a new I-526 petition still be
required to be filed under these circumstances?
As a Business Reality, Would the Principals of
the EB-5 Project Want to File an I-924?
Principals might want to file an I-924 because an approval of
an I-924 application for pre-approval of an actual EB-5 project
can be used for marketing purposes to attract foreign national
investors. That is, the investors may think that the I-526 petition
and the conditional permanent residency will be approved more
quickly with the pre-approval. However, the I-526 petition can
also be approved without pre-approval of the EB-5 project,
which should allow subsequent I-526 petitions to be approved
without re-adjudication. Furthermore, even with the I-924
application pre-approval, USCIS may still exercise discretion
to re-adjudicate the I-526 project documentation, which may
cause time delays. Despite commonly held beliefs, pre-approval
does not necessarily mean an easier path to I-526 approval.
The EB-5 project principals may decide to immediately file
I-526 petitions for funding, but also that they would like to
concurrently file the I-924 application for pre-approval for marketing purposes. The principals may decide to do this in order
to assure current and future investors that their actual EB-5
project will be pre-approved by USCIS and, therefore, the I-526
petitions will be quickly adjudicated and approved for investors.
With a concurrent filing of the I-924, USCIS may have issued
an RFE and received a response, which led to an approval with
specific details or specifications. For instance, before the I-924
approval, USCIS may have required changes to the business
plan and/or economist report.
If this is the case, the EB-5 project principals should notify the
investing I-526 petitioners to file additional information and
documentation with the USCIS I-526 petition adjudicator of
the I-924 approval so that their I-526 petitions may be updated
before adjudication. However, even with the approval of an
I-924 incorporating material changes, the question is whether
the re-filing of the I-526 petition would still be required.
Under the above example, the EB-5 project principals should
require the investors with a pending I-526 petition to notify the
USCIS by an interfiling letter of the I-924 approval that incorporates the material changes to the actual project. If the changes
are not material, the USCIS should give deference to the pre-approval of the I-924 in adjudicating the I-526 petition. However,
if USCIS, in the adjudication of the I-924 application, makes a
determination that changes are needed to the legal and financial
infrastructure of the project and the language in the offering documents, including the PPM and Limited Partnership Agreement,
then these changes may be considered material changes.
The question is whether this I-924 approval which reflects
a material change and whether this interfiling with USCIS is
going to allow the continuation of the adjudication and approval
of the I-526 concurrently filed, so investors will not have to
re-file a new I-526 petition. The final question is whether the
filing of the I-924 has created further problematic issues or time
delays in the adjudication of I-526 petitions. It may be more
efficient and effective for the EB-5 project to not file the I-924
and simply rely on the USCIS adjudicating the I-526 petition
and, hopefully, obtaining an approval.
Conclusion
Without doubt, the concurrent filing of the I-924 and the
I-526 is not necessary and may cause more time delays and additional work, both for the EB-5 project principals and the foreign
national investor. That is, it seems that the concurrent filing will
lead to a duplication of USCIS adjudication; one adjudicator
for the I-924 and another adjudicator for the I-526. One may
conclude that the concurrent filing will lead to two opportunities
for an RFE or denial, and contradictory and inconsistent decision-making, which will lead to unnecessary and inconve