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Apr 26, 2017

USCIS Backtracks on Change in I-924 Policy That Would Lead to I-526 Denials, to an Extent

Matthew Galati

In a rare public reversal, USCIS has backed away from a policy change which required I-924 amendments to be approved prior to the filing of Form I-526 petitions relating to projects outside the Regional Center’s approved jurisdiction in limited circumstances. Notably, this applies only in certain circumstances for Forms I-526 filed before February 22, 2017.

By way of background, Regional Centers often seek to sponsor projects located in counties outside of their approved geographic areas. In the early 2010s, ambiguity existed as to whether an I-924 amendment approval was required before I-526s relating to those projects could be filed. The May 30, 2013 Memo had settled the matter by indicating that such amendments were optional:

[F]ormal amendments to the regional center designation, however, are not required when a regional center changes its industries of focus, its geographic boundaries, its business plans, or its economic methodologies. A regional center may elect to pursue an amendment if it seeks certainty in advance that such changes will be permissible to USCIS before they are adjudicated at the I-526 stage, but the regional center is not required to do so. 

Stakeholders relied on this guidance for nearly four years. Then, with little warning, USCIS issued a new Form I-924 with instructions mandating that amendments be filed when the approved geographic area  is to be changed. This caught many stakeholders off guard, creating great uncertainty as to whether petitions filed in reliance on the established guidance would result in denials. On March 3, 2017, USCIS held an engagement where stakeholders voiced their justifiable concerns. USCIS took the following position:

Petitions filed on or after December 23, 2016 must follow the current guidance, which means that Form I-526 petitions based on an area not previously approved will be deniable due to ineligibility at the time of filing.

However, today, the agency has sent an email (reproduced below) that walks back its initial position as voiced on the stakeholder call.  Specifically, USCIS will now approve petitions filed from December 23, 2016 to February 21, 2017 that had depended on the previous guidance.

While we welcome this change that will undoubtedly save hundreds of investors and their families from the harsh prospects of denial, this provides another example of USCIS moving the goalposts on what stakeholders considered to be settled law.  Indeed, as we advocated in our comment to the recent “modernization” regulatory proposals, USCIS needs to take a more comprehensive approach and draft regulations that fully encompass the program and can allow stakeholders to proceed with certainty rather than implement “stealth” changes to crucial policy through instruction changes or by Request for Evidence.

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Dear Stakeholder,

On March 3, 2017, USCIS held an EB-5 national stakeholder engagement.  This national engagement was part of our ongoing effort to enhance dialogue with our stakeholders in the EB-5 program.  Remarks from the EB-5 national stakeholder engagement are available here.

At the engagement, USCIS noted that a May 2013 policy memo had previously provided guidance that a formal amendment was not required to expand a regional center’s geographic area, and permitted concurrent filing Form I-526, Immigrant Petition by Alien Entrepreneur prior to approval of the geographic scope amendment.  The May 2013 guidance was superseded by the recent publication of the final  Form I-924 ,the Application for Regional Center Designation Under the Immigrant Investor Program and instructions.  The I-924 revisions included changes to the Form I-924 instructions and require that regional centers file a Form I-924 when seeking an expansion of their geographic area.  The revised Form I-924 became effective on December 23, 2016, following publication of the revisions in draft form in the Federal Register in May of 2016, and a period during which the public had the opportunity to comment.

During the engagement, USCIS addressed questions regarding how requests to change a regional center’s geographic area should be filed and the timing of such a filing.  Specifically, where a regional center has a filed and pending Form I-924 amendment requesting an expansion in geographic area, stakeholders  asked whether or not Form I-526 petitions may be filed prior to approval of the I-924 amendment, relying on such proposed expanded geography.  USCIS has reviewed stakeholder concerns raised during the engagement and has updated the engagement remarks to clarify how the agency is implementing the above policy. Specifically:

  • Where the regional center’s geographic area expansion request was submitted either through a Form I-924 amendment or Form I-526 petition filed prior to February 22, 2017 (the date on which use of the new Form I-924 became mandatory), and the request is ultimately approved, USCIS will continue to adjudicate additional Form I-526 petitions associated with investments in that area under the guidance reflected in the May 30, 2013 policy memo.
  • Any requests for geographic area expansion made on or after February 22, 2017 will be adjudicated under the current guidance; namely, a Form I-924 amendment must be filed, and approved, to expand the regional center’s geographic area.
  • For geographic area expansion requests made on or after February 22, 2017, the Form I-924 amendment must be approved before an I-526 petitioner may demonstrate eligibility at the time of filing his or her petition based on an investment in the expanded area. Form I-526 petitioners who believe they may be unable to demonstrate eligibility at the time of filing on this basis may wish to contact USCIS at ipostakeholderengagement@uscis.dhs.gov

Sincerely,

USCIS Public Engagement

 

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