EB5 Investors Magazine Volume 2 Issue 2 | Page 18

Moreover, it is arguable that the Kungys definition of “material” is applicable specifically to circumstances where the materiality of a willfully misrepresented or concealed factual statement is at issue, and not where underlying facts simply change absent any affirmative wrongdoing. For example, as noted in the May 30 Memo, changes to business plans can occur due to a “sudden lack of supply in required merchandise, an unexpected hurricane that devastates an area in which the new business was to be built, or a change in the market that the business is intended to serve.”21 These types of changed circumstances do not result from any misconduct, and, more often than not, are outside the influence and control of the parties affected by said changes (i.e., individual investors). Thus, USCIS’s application of a materiality standard formulated, in essence, to assess the impact of criminal false statements seems particularly unhelpful in determining the significance of changes resulting from lawful, day-to-day commercial realities. Continued from page 15 Echoing Kungys, the May 30 Memo states that a “change in fact is material if the changed circumstances would have a natural tendency to influence or are predictably capable of affecting the decision.”19 This standard of materiality, however, may not be entirely appropriate in the EB-5 context. Initially, it is arguable that Kungys’s definition of “material” is specific to judicial denaturalization proceedings, and does not extend to agency review of immigration petitions. Indeed, in postulating a definition of “material,” Justice Scalia expressed that, rather than permitting an “infinite variety of factual patterns that may emerge” to guide the question of materiality, it would be “safer in the naturalization context” to have the “central object of the inquiry: whether the misrepresentation or concealment was predictably capable of affecting, i.e., had a natural tendency to affect, the official decision.” The Court’s emphasis on adopting a uniform definition of “material” appears to be predicated, in large part, on its recognition that denaturalization cases present unique sets of circumstances that may not necessarily be present in other contexts.20 USCIS EB-5 Adjudications Policy Memorandum of May 30, 2013 at 23. Kungys, 485 U.S. at 776 (Opinion of Scalia, J.) (analyzing 8 U.S.C. § 1451(a) while “[b]earing in mind the unusually high burden of pr