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The EB-5 consulting firm would take the lead in
preparing the response to the NOID by creating a cover
letter that paralleled the NOID point for point. Points
(A), (B) and (D) from the NOID would be handled by the
investor’s immigration attorney, while points (C) and
(E) would be handled by the consulting firm.
BEST PRACTICE #2:
RESPOND TO EACH ISSUE INDICATED BY USCIS
P o i n t ( A ) w a s d e a l t w i t h b y t h e i n v e s t o r ’s
immigration attorney and required the completion
of Form I-526, which was missing answers for page
5, questions 10 through 20, and page 6, question
11. Point (B) was also handled by the immigration
attorney and involved clarif ying through
documentary evidence that the investor did indeed
live at the address listed on her I-526 petition. Point
(C) was addressed by the EB-5 consulting firm. The
primary issue raised in this section was insufficient
evidence that the investor’s capital actually went to
the job-creating entity (JCE).
NOID CASE STUDY
As an example of these best practices, consider a
NOID issued by USCIS to an individual EB-5 investor
who invested in a major hotel renovation project
in New York state. The investor was issued a NOID
in response to her Form I-526 filing. In that NOID,
USCIS i ndicated t hat t he i nvestor had fa i led to
establish her eligibility under the EB-5 program for
the following reasons:
(A) Form I-526 was incomplete.
(B) The mailing address on Form I-526 was shared
by other investors in the same project.
(C) The invested capital was not sufficiently linked
to the entity most closely responsible for job
creation.
(D) The evidence did not establish that the invested
capital was obtained and exchanged lawfully.
(E) The business plan was not Matter of Ho
compliant.
BEST PRACTICE #1:
COORDINATE A RESPONSE TEAM
In this case, the investor worked with her immigration
attorney and hired an experienced EB-5 consulting
firm to help handle the NOID.
The response by the consulting firm first included an
update to the sources and uses chart, which served
in part to identify the JCE and evidence the flow of
funds from investors to the actual renovation project.
This updated chart was referenced in the cover letter
and included as an exhibit.
N e x t, t h e r e s p o n s e pr o v i d e d a n n o t a t e d b a n k
records that showed the transfer of funds from the
EB-5 investors into the bank account of the new
commercial enterprise (NCE) and the subsequent
transfer of funds from the NCE’s account to the JCE’s
account. The response also indicated the date on
which the investor’s capital contribution of $500,000
was deposited into the NCE’s bank account and the
related transaction number. Each of these details
from the cover letter pointed to the actual annotated
bank records included as an exhibit to the response.
A secondary issue raised by USCIS in point (C) was
the lack of a construction loan agreement, which
the business plan indicated would be included in the
filing. Thus, a construction loan letter of intent and
term sheet was included in the response package
a s a n e x h ibit a nd w a s re fere nce d i n t he cover
letter. Point (D), which required further evidence
of t he law ful source a nd pat h of t he i nvestor’s
funds, was handled by the investor’s immigration
attorney. Addressing this issue required clarifying
s o m e i n c o n s i s t e n c i e s i n s t a t e m e nt s b e t w e e n
Form I-526 and a letter accompanying that form.
USCIS also required further evidence that a gift
from the investor’s father used in the investment
was lawfully acquired by the father. The attorney
i ncluded as a n e x h ibit ev idence of t he fat her’s
employment and tax history.