In a recent update to the Policy Manual, the USCIS has included change in Regional Center affiliation post filing of Form I-526 under definition of ‘material change’ under the EB-5 visa program.
This update is significant because a material change occurring after filing of the I-526 petition but before its approval and grant of conditional permanent residence requires the EB-5 applicant to file a new I-526 petition.
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Implications for EB-5 Visa Applicants
In case of applicants from countries that have not yet utilized the per-country quota cap of 7.1%, a change in Regional Center sponsorship requiring filing of a new petition can result in a two-year delay in grant of conditional permanent residence.
The average processing time for I-526 petition approval for non-retrogression countries is around two years. An applicant filing a fresh petition will have to wait through the processing period before entering and staying in the US as a conditional permanent resident.
This update is even more significant for those from countries subject to the visa backlog because the visa backlog is cleared based on the application’s priority date i.e. the date of receipt of the I-526 petition at USCIS.
Having to file a fresh petition will push back the priority date and can result in a significant increase in the waiting time for the EB-5 visa to become available for issue after approval of the I-526 petition.
Further, inclusion of children as derivatives depends on their age at time of filing of the I-526 petition. This means a child aged more than 21 years at time of the new filing will be aged out even if he/she had been an eligible derivative at the time of the original filing.
Hence, choosing the right Regional Center becomes even more important for EB-5 investors. Having to accept change in sponsorship or affiliation of the RC can lead to very long delays and, in some cases, necessitate a fresh application and investment for aged-out children.
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