EB5 Investors Magazine Volume 1 Issue 2 | Page 16

Continued from page 15 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