Prevailing Against
the Notice of Intent
to Terminate
by Christian Triantaphyllis
Each year USCIS-designated regional centers are required to
report their activity by submitting the Supplement to Form I-924
(“I-924A”) as a means of providing annual reporting to USCIS.
The I-924A is used to demonstrate the regional center’s continued
eligibility for its USCIS designation under the Immigrant Investor
Program. For years, filing the I-924A was a fairly routine and
predictable event: submit the I-924A to USCIS by the December
29th deadline, and as long as the regional center had not been
involved in any illegal activity, USCIS routinely allowed for
regional centers to continue in existence.
In today’s EB-5 climate, as the number of USCIS designated
regional centers approaches 800, there has been a noticeable
shift by USCIS toward monitoring whether regional centers are
fulfilling the goals of the EB-5 program. Until recently, most
circumstances leading to the termination of a regional center
involved USCIS reacting to illegal acts, such as fraud, committed
by the regional center. However, the EB-5 community is now
experiencing increased efforts by USCIS to monitor and shut
down regional centers that are not active enough to warrant
preserving their regional center designation based on the information provided in the filed I-924A.
The purpose of this article is not to analyze and consider all reasons for regional center terminations, including terminations that
involve regional center wrongdoings, but instead it is focused on
what USCIS is concerned about when issuing a Notice of Intent to
Terminate (“NOIT”) that addresses regional center inactivity and
is an attempt to provide strategies for prevailing against a NOIT in
order to reaffirm the USCIS regional center designation.
The predictability that was once associated with the I-924A
reporting system has disappeared for regional centers that are not
able to demonstrate economic activity in accordance with the
EB-5 regulations and the I-924A. As a result, it is estimated that
more regional centers than ever before are receiving the NOIT
from USCIS, and the NOITs are arriving soon after submitting
the I-924A for the fiscal year. USCIS has terminated 37 regional
centers as of October 22, 2015, with over half of all the regional
center terminations occurring in 2015. Therefore, the I-924A is
36
no l onger a routine activity, but instead it can lead to a fight for
survival for regional centers across the United States.
The purpose of this article is not to analyze and consider all
reasons for regional center terminations, including terminations
that involve regional center wrongdoings, but instead it is focused
on what USCIS is concerned about when issuing NOITs that
address regional center inactivity and is an attempt to provide
strategies for prevailing against a NOIT in order to reaffirm the
USCIS regional center designation.
To best respond to a NOIT, it is necessary to understand
what it is and why it might be issued by USCIS. According to
the USCIS website, USCIS may terminate a regional center’s
participation in the Immigrant Investor Program when the
regional center fails to:
•
Submit Form I-924A on an annual basis, on a cumulative
basis and/or as otherwise requested by USCIS to demonstrate continued eligibility; or
•
Promote economic growth as required.
As a result, USCIS is issuing NOITs based on a regional center’s
inability to promote economic growth, such as increased export
sales, improved regional productivity, job creation, or increased
domestic capital investment. The NOIT does provide the regional
center an opportunity to respond in order to persuade USCIS to
reaffirm its standing as a USCIS-designated regional center and
avoid being terminated from the Immigrant Investor Program.
Keeping this background information and the goals of the
Immigrant Investor Program in mind, the issues to overcome in
a NOIT concerning inactivity can typically be broken down into
the following categories:
1. The regional center’s I-924A filings do not report any
EB-5 capital investment or job creation for the last several
fiscal years.
2. The regional center’s I-924A filings do not report any
pending or approved I-526 or I-829 petitions demonstrating
investments associated with the regional center.
EB5 INVESTORS MAGAZINE