A petitioner cannot materially change the business plan of the enterprise after Form I-526 is submitted because it serves as the basis for approval of Form I-829, even if the petitioner has met all other necessary requirements. However, if an alien wishes to change the business plan from the initial one outlined in Form I-526, he or she may file a new Form I-526 with a new business plan along with all other necessary requirements. Once a petitioner files a new Form I-526, the following can occur:

1. If the new Form I-526 is filed before the alien adjusts status or is issued an immigrant visa, then the new petition will serve as the basis for I-829 approval.

2. If the new Form I-526 is filed after the alien adjusts status or is issued an immigrant visa but before the due date of the I-829 petition, then the alien may file Form I-407 along with Form I-485. USCIS will then terminate the alien’s previous conditional permanent residency. If the new Form I-485 is approved, then the alien will be granted a new two year period of Conditional Permanent Residency CPR. The new I-526 petition will then serve as the basis for I-829 approval.

3. If the new Form I-526 is filed after the alien adjusts status or if the alien is issued an immigrant visa on or after the due date of the I-829 petition and the new I-526 is approved, the alien may request withdrawal of the initial I-829 petition and file a new AOS application. If the new AOS is approved, the alien will be granted a new two year period of CPR. The new I-526 petition will serve as the basis for I-829 approval. If the new I-526 petition is denied, then the I-829 will be adjudicated based on the initial I-526.

USCIS acknowledges that investment in a targeted employment area (TEA) — either rural or high unemployment area – may occur before filing the I-526. In such a case, the investor has the burden of proving that the area of investment qualified as a TEA at the time the investment was made.

Furthermore, by the time the investor files an I-829, the area of investment may cease to qualify as a TEA. As increased job creation is the main goal of the EB-5 program, changes in population size and unemployment are acceptable and do not affect the removal of conditions.