EB5 Investors Magazine - Page 33

As seen above, the INA requires the capital to have been invested and that such investment is sustained throughout the period of conditional residency. The May 30, 2013 USCIS Memo references a “change in plan” with respect to liquidation and reallocation or redeployment of capital concluding that it may result in the petition not complying with the requirement to “invest and sustain the investment.” It is unclear (1) as to what type of “change” is contemplated under the Memo and (2) whether USCIS has specifically noted and approved business plans that contemplate liquidation and redeployment of capital as part of the project’s business plan.1 It is important to note that inherent in a “change in plan” analysis by USCIS is the good faith of the petitioner. The absence of this “good faith” could result in the petitioner’s conditional resident status being terminated.2 If an NCE and/or JCE contemplated changes to the submitted business plan and private placement memorandum prior to their submission to USCIS without disclosure, none of the analysis below would be applicable. In fact, there could be fraud issues with both USCIS and SEC resulting in serious penalties to the parties involved. What is more frightening is the possible impact on an investor that was unaware of the action: the investor could lose his/her residenc