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A Look at Material Change as Defined by the December 2009 EB-5 Neufeld Memorandum


The EB-5 Reform and Integrity Act of 2022 brought many changes to the EB-5 program. For the latest information, please click here.

The December 11, 2009 Neufeld Memorandum regarding material changes in business plans is misguided and legally deficient in a number of respects.  The issue of material change has arisen in many contexts, including nonimmigrant petitions and immigrant petitions.  If a change is not material, nothing must be filed.  If a change is material, an amended petition must be filed.

The Neufeld Memorandum states that a “new petition”, rather than an “amended petition”, must be filed.  The distinction is critical.  If an amended petition must be filed, the investor keeps his conditional permanent resident status.  If a new petition must be filed, the investor must abandon his conditional permanent resident status.  USCIS states that the investor can then readjust status but must incur a new two year conditional residence period.  This is contrary to law, since INA§245(c)(7) prohibits such an adjustment of status.

The impact of this distinction is a serious one for the investor.  It is even more serious for family members.  USCIS states that, if a conditional resident spouse has been divorced, or if a conditional resident child has turned 21, the spouse or child cannot gain the benefit of the new I-526 petition.  Presumably, the spouse or child is subject to removal from the U.S.  This is wrong both as a matter of policy and as a matter of law. 

The Neufeld Memorandum relating to material change should be rescinded or challenged.

  • EB-5 Immigration

    The Klasko EB-5 immigration attorney team is adept at navigating the complex investor visa program. EB-5 is a multi-year process to obtaining a US green card and you need an experienced attorney with you every step of the way.

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