Chapter 4 – Immigrant Petition by Alien Entrepreneur (Form I-526)
An immigrant investor must file an initial immigrant petition and supporting documentation to receive EB-5 immigrant classification.  See 8 CFR 204.6(a). See 8 CFR 103.2(b). The immigrant investor will be a conditional permanent resident upon adjustment of status or admission to the United States.  See INA 216A(a). For information regarding removal of the conditional basis of the investor’s permanent resident status, see Chapter 5, Removal of Conditions [6 USCIS-PM G.5].
The petitioner must establish he or she meets the following eligibility requirements when filing the Immigrant Petition by Alien Entrepreneur (Form I-526):
•The required amount of capital has been invested or is actively in the process of being invested in the new commercial enterprise;
•The investment capital was obtained by the investor through lawful means;
•The new commercial enterprise will create at least 10 full-time positions for qualifying employees; and
•The immigrant investor is or will be engaged in the management of the new commercial enterprise.
If the immigrant investor seeks to qualify based on a $500,000 investment, instead of $1,000,000, it is necessary to show the new commercial enterprise or job-creating entity, as applicable, is principally doing business in a TEA.
At the preliminary Form I-526 filing stage, the immigrant investor must demonstrate his or her commitment to invest the capital, but does not need to establish the required capital already has been fully invested. The investment requirement is met if the immigrant investor demonstrates that he or she is actively in the process of investing the required capital. However, evidence of a mere intent to invest or of prospective investment arrangements entailing no present commitment will not suffice.  See 8 CFR 204.6(j)(2). See Matter of Ho, 22 I&N Dec. 206 (Assoc. Comm. 1998).
At this preliminary stage, the immigrant investor does not need to establish the required jobs have already been created. The job creation requirement is met by the immigrant investor demonstrating it is more likely than not the required jobs will be created.  See 8 CFR 204.6(j)(4). See 8 CFR 204.6(m)(7).
A. Petitions Associated with Regional Centers
Each regional center investor must demonstrate that he or she has invested, or is actively in the process of investing, lawfully obtained capital in a new commercial enterprise located within a designated regional center in the United States. The investor must also demonstrate that this investment will create at least 10 direct or indirect full-time jobs for qualifying employees.
The immigrant investor must provide a copy of the regional center’s most recently issued approval letter. In addition, if the immigrant investor is relying on previously approved project-specific documentation (including the comprehensive business plan, economic analysis, and organizational and transactional documents) to satisfy his or her burden of proof, the immigrant investor must submit this documentation with his or her Form I-526 petition. This is required even though the regional center previously submitted and USCIS reviewed the documentation with a regional center’s Application for Regional Center Under the Immigrant Investor Program (Form I-924).
When USCIS has evaluated and approved certain aspects of an EB-5 investment, USCIS generally defers to that favorable determination at a subsequent stage in the EB-5 process. USCIS does not, however, defer to a previously favorable decision in later proceedings when, for example, the underlying facts upon which a favorable decision was made have materially changed, there is evidence of fraud or misrepresentation, or the previously favorable decision is determined to be legally deficient.  Legally deficient includes objective mistakes of law or fact made as part of the USCIS adjudication.
B. Stand-Alone Petitions
An immigrant investor not associated with a regional center must, together with the petition, demonstrate that he or she has invested, or is actively in the process of investing, lawfully obtained capital in a new commercial enterprise located within the United States that will create at least 10 direct full-time jobs for qualifying employees.
C. Material Change
A petitioner must establish eligibility at the time of filing and a petition cannot be approved if, after filing, the immigrant investor becomes eligible under a new set of facts or circumstances. Changes that are considered material that occur after the filing of an immigrant investor petition will result in the investor’s ineligibility if the investor has not obtained conditional permanent resident status.  See Matter of Izummi, 22 I&N Dec. 169, 176 (Assoc. Comm. 1998). See 8 CFR 103.2(b)(1).
If material changes occur after the approval of the immigrant petition, but before the investor has obtained conditional permanent residence, such changes would constitute good and sufficient cause to issue a notice of intent to revoke and, if not overcome, would constitute good cause to revoke the approval of the petition. A change is material if the changed circumstances would have a natural tendency to influence or are predictably capable of affecting the decision.  See Kungys v. United States, 485 U.S. 759, 770-72 (1988).
Changes that occur in accordance with a business plan and other supporting documents as filed will generally not be considered material. For example, if at the time of filing the immigrant petition, no jobs have yet been created, but after approval of the immigrant petition and before the investor has obtained conditional permanent resident status, the investment in the new commercial enterprise results in the creation of 10 jobs in accordance with the investor’s business plan as filed, such a change would not be considered material.
If the new commercial enterprise undertakes the commercial activities presented in the initially filed business plan and creates the required number of jobs, the new commercial enterprise may further deploy the capital into another activity. The activity must be within the scope of the new commercial enterprise and further deployment must be within a commercially reasonable period of time. Further deployment of this nature will not cause the petition to be denied or revoked under certain circumstances.
In all cases where further deployment is envisioned, officers review the evidence submitted with the petition to determine whether the petitioner has presented sufficient evidence to demonstrate continuing eligibility with the capital at risk requirement. The investor must show that the capital is, and will remain, at risk of loss and gain and is and will be used in a manner related to engagement in commerce within the scope of the new commercial enterprise’s business. Further deployment of capital that occurs before the immigrant investor becomes a conditional permanent resident must be adequately described in the Form I-526 record.
If the organizational documents for a new commercial enterprise contain a liquidation provision, that does not otherwise constitute an impermissible debt arrangement, the documents may generally be amended to remove such a provision in order to allow the new commercial enterprise to continue to operate through the regional center immigrant investor’s period of conditional permanent residence. Such an amendment would generally not be considered a material change because facts related to the immigrant investor’s Form I-526 eligibility would not change.
If, at the time of adjudication, the investor is asserting eligibility under a materially different set of facts that did not exist when he or she filed the immigrant petition, the investor must file a new Form I-526 immigrant petition.
Further, the termination of a regional center associated with a regional center immigrant investor’s Form I-526 petition constitutes a material change to the petition.  See 8 CFR 204.6(j). See 8 CFR 204.6(m)(7).
Legally deficient includes objective mistakes of law or fact made as part of the USCIS adjudication.
See Kungys v. United States, 485 U.S. 759, 770-72 (1988).
POLICY ALERT – Job Creation and Capital At Risk Requirements for Investors
June 14, 2017
U.S. Citizenship and Immigration Services (USCIS) is updating the USCIS Policy Manual to provide further guidance regarding the job creation and capital at risk requirements for Form I-526, Immigrant Petition by Alien Entrepreneur, and Form I-829, Petition by Entrepreneur to Remove Conditions on Permanent Resident Status.
POLICY ALERT – Employment-Based Fifth Preference Immigrants: Investors
November 30, 2016
U.S. Citizenship and Immigration Services (USCIS) is issuing policy guidance regarding the eligibility requirements for regional centers and immigrant investors.
Pub. L. 102-395 - Section 610 of the Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations Act of 1993