3. The regional center’s I-924A filings do not indicate that it
has conducted activity that serves the purposes of the EB-5
Program since obtaining its regional center designation.
industry codes that will result in job creation. Then, demonstrate
how the project will use the capital to be contributed by the EB-5
investors to finance and develop a project that will create jobs.
Responding to concerns about the lack of EB-5
capital investment or job creation for the last
several fiscal years
For a regional center that cannot demonstrate any EB-5 capital
investment or job creation since its inception, several arguments
may help USCIS recognize the regional center’s ongoing efforts to
instigate EB-5 capital investment or job creation.
Responding to a failure to report any pending or
approved I-526 or I-829 petitions demonstrating
investments associated with the regional center.
The response to this issue may appear to be absolutely black
and white: are there or are there not I-526 or I-829 petitions
filed in connection with the regional center during the fiscal year
in question. However, that’s not necessarily the case. If there are
immigrant investor petitions filed subsequent to the relevant
reporting period, by all means mention it when responding to
the NOIT. The I-924A asks only about activity that occurred
during the specific fiscal year. When responding to a NOIT it is
important to use it as an opportunity to advocate for the regional
center and its associated investments, regardless of whether the
activity occurred after filing the I-924A. USCIS will also perceive
other factors in a positive light, such as pending regional center
amendments, or other activities that promote economic growth.
In addition, be sure to describe any project documents that can
be referenced in a response to the NOIT in order to demonstrate
that EB-5 investors will be sought in the near future, as well as the
resulting economic and job creating impacts that those anticipated
I-526 petitions and corresponding investment funds will have on
the regional center’s EB-5 project. Providing such evidence will
make it clear to USCIS that there will be I-526 petitions pending
with USCIS in the near future, demonstrating investments
associated with regional center.
For example, consider a regional center that has made
significant efforts in the past to provide investment opportunities
to EB-5 investors, which included developing a full set of project
documents for EB-5 investors. Subsequently, the regional
center determined that the project was not viable for the EB-5
program based on a new set of facts or market conditions and so
it cancelled the project. That type of foresight should be received
positively by USCIS. The regional center should request that
USCIS recognize such caution in its business dealings, which
saved the regional center from continuing forward with a riskier
investment opportunity that may have fallen short of raising the
funds needed to complete the project.
Furthermore, effective arguments describe to USCIS any terms
for projects that could not be agreed upon with developers that
ultimately caused the regional center to stop moving forward
with the project. Such terms might include being unable to secure
conventional financing due to changing market conditions, or
the lack of permits and licensing agreements. Even if the regional
center actively marketed the project and received investments
from EB-5 investors, but ultimately refunded the investors
when the project did not go forward, it is all worth mentioning
to USCIS in a response to a NOIT. The key is to demonstrate
that the regional center made every effort to provide investment
opportunities to EB-5 investors, which included reaching the
point of wiring investment funds to the project. Upon receiving
investment funds for the project, the regional center elected to
return investors’ funds once it was determined that the project
was less v iable than previously anticipated, which is the type of
responsible action that USCIS should support.
It is also helpful for the regional center to demonstrate that
there will be upcoming EB-5 capital investment for the use of job
creation purposes, even though the upcoming EB-5 investment
will occur after the I-924A reporting period in question.
For example, if the regional center recently filed or is in the
process of preparing and filing an I-924 Exemplar Application, then
it is effective to include a detailed description of the project and the
Responding to the regional center’s I-924A filing’s
inability to indicate that it has conducted activity
that serves the purposes of the EB-5 Program since
obtaining its regional center designation.
This issue is perhaps the broadest of USCIS’ list of concerns in
a NOIT. In response to this issue, an argument can be made that
the regional center has been involved with a variety of meaningful
activities that serve the purpose of the EB-5 program by providing
evidence of business dealings and contracts for services rendered
for the purpose of establishing the regional center’s potential EB-5
projects. Such activity certainly demonstrates efforts performed by
the regional center that intend to fulfill the goals of the Immigrant
Investor Program.
Remaining consistent with marketing efforts and project goals
will work to the regional center’s advantage, because USCIS
reviews the I-924A along with the regional center’s previously
submitted documentation. Expenditures on business consultants,
economists, immigration attorneys, securities attorneys, foreign
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