Retaining the Priority Date under New Regulation
When the investor’s EB-5 petition has been approved, but there has been fraud or misappropriation of funds by the regional center, NCE or project, the investor retains their priority date. Where there is fraud by the investor resulting in the approval of an EB-5 petition, the priority date is not retained. If there is a material change after I-526 approval, which results in a revocation of the approved I-526 petition, the investor may keep their priority date.
Priority date retention, however, won’t assist an investor in the case of a regional center termination or failed or fraudulent project when the offending event occurred before the investor’s approval of the I-526 petition.
The new priority date retention provision also provides an additional reason for an investor to file a mandamus complaint in federal court for delayed adjudication. Previously, an investor would have difficulty showing prejudice caused by USCIS delays in adjudicating the petition where the investor is subject to a quota backlog. Now, the investor could show prejudice because of a desire to get an I-526 petition approved to retain the priority date if they now want to or have already filed a new EB-5 petition. It is also important to note that there is no priority date retention in the case where USCIS decides a “material error” was made in approving the original I-526 petition.
Where USCIS changes its position on any issue involving an EB-5 case, priority date retention may be jeopardized as follows: 1) Priority date retention will only apply when the investor files a subsequent $900,000 investment EB-5 petition; 2) Retention is not available if an investor has obtained conditional permanent resident status; 3) There is also no provision in the regulation to allow the transfer of a priority date to another family member; and 4) When an I-829 petition is denied, and the investor must file a new $900,000 investment EB-5 petition, there is no priority date retention.
