As part of USCIS’ updated Redeployment guidance released July 24, USCIS released a Q&A. The Q&A confirms the guidance from July 24, including the more questionable aspects of USCIS’ policy update. Importantly, USCIS doubled down on the idea that it can apply the new redeployment guidance to pending I-526 petitions and I-829 petitions by stating they have “…determined that any potential impacts to investors would be minimal because the updated guidance merely clarifies continuing eligibility requirements…” and that “[t]his clarification does not change any substantive requirements.” This statement appears contradictory to USCIS’ earlier policy changes, such as the early 2017 revision to whether or not regional center geographic area expansion requests must be approved prior to filing I-526 Petitions within that expanded area. Furthermore, given USCIS’ posted processing times are currently over six years, it seems likely that EB-5 capital has been or will be redeployed before many I-526 Petition adjudications. Thus, not only does this change materially affect the eligibility requirements of pending petitions, it changes substantive requirements.

It also appears USCIS is using the Q&A to solicit interfilings for these pending I-526 Petitions. USCIS discouraged “interfiling” in the past, as there is no mechanism to interfile documents into a pending petition, and no legal, regulatory or statutory authority exists for an interfiling. Thus, it could be expected that USCIS will issue requests for evidence to long-pending I-526 petitions if it believes sustainment of the investment will not occur during the petitioner’s conditional permanent residency. Furthermore, the starting point for this question appears to be that deployment of capital must be ongoing throughout the I-526 Petition adjudication period. That starting point is plainly incorrect, as the applicable standard at the I-526 petition stage is whether the petitioner has demonstrated by a preponderance of the evidence that his or her capital will be at risk, and such capital will be at risk throughout the period of conditional permanent residency. EB-5 capital never has to be at risk prior to I-526 petition approval.