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The Neufeld Memorandum relating to material change should be rescinded or challenged.
Tags: EB-5