EB5 Investors Magazine Volume 3 Issue 3 | Page 38

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