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[HOT] [Q] What was the holding of Matter of Katigbak, which is often cited by USCIS in denying either I-526 or I-829 petition?
Matter of Katigbak, 14 I&N Dec. 45 (Comm’r 1971).
Katigbak held that an I-140 beneficiary must meet all requirements specified on her employer’s labor certification application as of the date of the application’s submission. Specifically, the Katigbak case found: You must determine whether the beneficiary has met the minimum education, training, and experience requirements of the labor certification at the time the application for labor certification was filed with DOL. You cannot approve a petition for a preference classification if the beneficiary was not fully qualified for the preference by the priority date of the labor certification.
As you can see, this was a very narrow holding involving a labor certification based I-140 immigrant petition. The Service appears to be intent on applying this case with a very narrow holding to the situations where changes occur AFTER I-526 approvals. That's just a bad reasoning because no one is arguing that I-526 should be approved where the I-526 does not meet the legal requirements at the time of filing. Instead, we are talking about changes that occur due to good faith business necessities or economic factors AFTER I-526 approval, based on the I-526 petition which did meet all legal requirements at the time of submission.
There is no good reason why an amendment to the already-approved I-526 should not be allowed. Of course, there is no specific language in either EB-5 statutes or regulations allowing this, but then, there is nothing prohibiting such procedure.
All I am saying is the EB-5 law do not prohibit changes after I-526 approval; any decent analysis of the EB-5 statutes and regulations must admit this. Now, I do understand that USCIS may want to NOT allow this from the perspective of wanting to prevent fraud, but at the same time, the business realities will force USCIS to acknowledge this fact.
The underlying point is why in the world would USCIS want to deny I-829s which in good faith tried to meet the I-829 requirements, or have met them in fact even with substantial changes occurring AFTER I-526 approval? This is not a good policy.