EB5 Investors Magazine Volume 2 Issue 2 | Page 17

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