More than two decades later, in Matter of Izummi, the AAO expanded upon Matter of Katigbak’ s general pronouncement that a visa petitioner must establish eligibility at the time of filing to state that a petitioner“ may not make material changes to a petition that has already been filed in an effort to make an apparently deficient petition conform to Service requirements.” 8
Both Matter of Katigbak and Matter of Izummi described circumstances in which ineligibility ab initio was sought to be cured post-filing. However, in circumstances where the petitioner demonstrates his eligibility for an I-526 petition at the time of filing that petition, and continues to be eligible for that benefit, albeit under changed circumstances, Matter of Katigbak and Matter of Izummi should not control. Accordingly, USCIS’ s reliance on these two decisions to justify the revocation of an approved I-526 petition if material changes arise prior to the investor’ s admission as conditional permanent resident is arguably untenable.
“ When material changes to a business plan occur following the initial approval of an I-526 petition but before the investor’ s admission as a conditional resident, a better policy posture from the petitioner’ s perspective would be for USCIS to permit the filing of an amended I-526 petition reflecting those changes,”
When material changes to a business plan occur following the initial approval of an I-526 petition but before the investor’ s admission as a conditional resident, a better policy posture from the petitioner’ s perspective would be for USCIS to permit the filing of an amended I-526 petition reflecting those changes, which the agency can review for compliance with the applicable statutory and regulatory requirements. Permitting investors to file an amended, rather than new, I-526 petition in these circumstances not only would avoid prejudicing those investors with children who have“ aged out” since the filing of the original I-526 petition, but also would be entirely consistent with USCIS’ s treatment of material changes arising in other non-immigrant 9 and immigrant contexts. 10
“ When material changes to a business plan occur following the initial approval of an I-526 petition but before the investor’ s admission as a conditional resident, a better policy posture from the petitioner’ s perspective would be for USCIS to permit the filing of an amended
I-526 petition reflecting those changes,”
8
See Matter of Izummi, 22 I & N Dec. 169, 175.
9
See, e. g., 8 C. F. R. § 214.2( h)( 11)( i)( A)( requiring an amended petition when there are“ any changes in the terms and conditions of employment of a beneficiary which may affect eligibility” for H-1B status).
10
See, e. g., AFM 22.2( E)( indicating that if there“ has been any material change in the job opportunity” necessitating a new labor certification application, the labor certification can be submitted in support of the pending Form I-140 petition, without requiring the filing of a new Form I-140 petition).
Materiality in the EB-5 context
The term“ material,” and its doctrinal counterpart,“ materiality,” arise in many different areas of substantive law, including immigration, securities, contract, and tort law. Although, at its core, the term“ material” connotes importance and influence, 11 there is a surprising lack of uniformity among judicial and administrative bodies both with regard to the legal definition and the proper application of the term.
In the EB-5 context, for example, the concept of materiality is wholly absent from the governing statutory and regulatory provisions. 12 Furthermore, while materiality makes an appearance in the precedent decision, Matter of Izummi, this decision only articulated a general prohibition against making“ material changes” to pending Form I-526 petitions in order to perfect apparent deficiencies contained therein, and did not put forth any workable, much less comprehensive, definition / standard of the term“ material.” 13
To date, the most complete articulation of materiality in the EB-5 context appears in the USCIS’ s EB-5 Adjudications Policy Memorandum of May 30, 2013( the“ May 30 Memo”). In its discussion of deference to prior agency determinations, USCIS states that a“ previously favorable decision may not be relied upon in later proceedings where, for example, the underlying facts upon which a favorable decision was made have materially changed.” 14 In defining the term“ material,” the agency invoked the standard articulated in Kungys v. United States, a U. S. Supreme Court decision that analyzed a materiality requirement in the context of judicial denaturalization proceedings. 15
“ Just because you’ re designated for a county with high unemployment doesn’ t mean that you’ re a TEA”
In Kungys, the United States sought to revoke Petitioner’ s citizenship under 8 U. S. C. § 1451( a) 16 after it was discovered that, during the naturalization proceedings, he had misrepresented certain material facts relating to his date and place of birth, wartime occupations, and wartime residence. The question narrowed to whether the misrepresentations were“ material” under the relevant statutes. 17 Justice Scalia, writing for the Court, determined that:( 1) the same uniform definition of“ material” that is typically applied in interpreting criminal statutes applies in the context of denaturalization proceedings; and, as such( 2) the relevant inquiry was whether the statements had“ a natural tendency to influence, or [ were ] capable of influencing, the decision of the decision-making body to which [ they were ] addressed.” 18
Continued on page 16
11
See Blacks Law Dictionary Online, at http:// thelawdictionary. org / material /.
12
See generally INA § 203( b)( 5) & § 216A; 8 C. F. R. § 204.6 & § 216.6.
13
See Matter of Izummi, 22 I & N. Dec. 169, 175.
14
USCIS EB-5 Adjudications Policy Memorandum of May 30, 2013 at 23( emphasis added).
15
USCIS EB-5 Adjudications Policy Memorandum of May 30, 2013 at 23.
16
8 U. S. C. § 1451( a)( providing for a certificate of naturalization to be revoked if it was“ illegally procured” or was“ procured by concealment of a material fact or by willful misrepresentation”).
17
Kungys, 485 U. S. at 764.
18
Kungys, 485 U. S. at 766. www. EB5Investors. com 15