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September 21 2017

New Guidance on Redeployment of EB-5 Funds

The recently updated EB-5 policy manual (“PM”) explained USCIS’ new policies on redeployment of funds from one project to another. The PM failed to answer many practical questions about how redeployment will actually work.

During the USCIS Employment Visa Engagement held in San Francisco on July 20, 2017, my associate attorney Nam-Giao Do asked Julia Harrison, USCIS Immigrant Investor Program Office Deputy Chief, two questions on redeployment of EB-5 funds to clarify the new EB-5 policy manual guidelines.

Mrs. Harrison directed her to email the questions to the USCIS EB-5 unit. The USCIS responded and their replies are included in Mrs. Harrison’s updated published Talking Points (also found here: Please note that the document refers to July 19, 2017 as the date of the engagement. This was the date of the San Jose engagement).

Below are our questions and USCIS’ responses:

1.             Question: A pending I-526 petition does not contain redeployment language. Can the securities documents be amended to allow redeployment, without this being considered a material change requiring refiling of the I-526?

Answer: Whether amended documents provided in support of a pending Form I-526 petition constitute an impermissible material change depends on whether the investor is asserting eligibility under a materially different set of facts that did not exist when he/she filed the petition. If the further deployment of capital is within the scope of the new commercial enterprise’s business activities in existence at the time the Form I-526 petition was filed, and amendments to the investment documents do not materially alter the facts in existence at the time of filing, such amendments, when considered under the totality of the circumstances, could likely not be considered a material change.

Martin’s comment: Thus, to provide flexibility, PPMs and other documents may be modified to provide for redeployment.

2.             Question: A filed I-526 petition contains redeployment language and is filed. While it is pending, the funds are deployed to another project. The new policy in the EB-5 Policy manual says that deployment of the capital that occurs before the investor obtains conditional permanent residence must be “adequately described in the I-526 record.” Would documents of the first project’s job creation and evidence of funds received by the second project be adequate to demonstrate the redeployment? What is the process to make the redeployment part of the record? Sending an “amendment” or “interfiling”? Would the process require refiling the I-526?

Answer: When adjudicating a Form I-526 accompanied by investment documents that contain language regarding further deployment, USCIS will review the record to determine whether the petitioner has presented sufficient evidence to demonstrate eligibility, including continuing eligibility with the capital at risk requirement. If, at the time of adjudication, the record is insufficient to establish eligibility, USCIS may request more evidence from the petitioner, issue a notice of intent to deny, or deny the petition, as appropriate.

Martin’s comment: This response does not clarify what may be provided for redeployment at the I-526 stage. If redeployment is viewed by USCIS as a material change to a pending I-526, a new I-526 would need to be filed, losing the time that the first application has been on file.