New Standard for EB-5 Regional Center Terminations: Part 2

By:  Joseph Barnett, Esq.

We previously blogged about the USCIS’ Administrative Appeals Office’s (“AAO”) decision, Matter of S-D-R-C-, ID# 13768 (AAO Mar. 15, 2017), which set a new standard for EB-5 Regional Center terminations by balancing “all the equities on a case-by-case basis to determine whether a regional center is continuing to promote economic growth.”

Since then, USCIS’ Immigrant Investor Program Office (“IPO”) has ramped up its efforts to enhance EB-5 integrity, with a sharp uptick in EB-5 Regional Center terminations in 2017 and EB-5 Regional Center compliance audits already taking place.  As of June 6, 2017, USCIS’ Immigrant Investor Program Office (“IPO”) has terminated 111 EB-5 Regional Centers.  20% of those terminations occurred in May 2017.  We expect IPO to continue its efforts to terminate Regional Centers that no longer promote economic growth in accordance with the EB-5 Program.  It’s critical that EB-5 Regional Centers are prepared for the IPO’s increased enforcement approach.

As part of its integrity measures, USCIS is now publishing EB-5 Regional Center termination notices on its website.  Each notice contains a citation to 8 C.F.R. § 204.6(m)(6), the reasons for the termination, and the procedure to appeal the termination.  Common reasons for EB-5 Regional Center terminations include:

  • Failure to remain in good standing in accordance with state law;
  • Failure to file annual Form I-924A, Annual Certification of Regional Center;
  • Form I-924A filings do not report any capital investment or job creation;
  • Form I-924A filings do not report any approved Form I-526, Immigrant Petition by Alien Entrepreneur; and
  • USCIS records indicate no pending Form I-526 or I-829 petitions.

Importantly, these notices appear indicate that IPO’s policy is to only give EB-5 Regional Centers three years to sponsor projects and get EB-5 applications in to USCIS for adjudication prior to issuing a Notice of Intent to Terminate (“NOIT”).  EB-5 Regional Centers initially designated in the summer of 2013 are now being terminated.

USCIS will continue to publish the termination notices as they become available.  Less than 70 termination notices are posted, with the most recent dated November 1, 2016.    It’s possible that USCIS has not published the recent termination notices because the terminated Regional Center is now appealing the decision to the AAO and/or filing a motion to reopen and/or reconsider the decision with USCIS, or perhaps because the scanner at IPO is slow.

Also of note, USCIS’ website indicates that 859 EB-5 Regional Centers have been approved as June 5, 2017.  Yet, on the same page (last updated yesterday), there are 1,256 EB-5 Regional Centers listed in the searchable datable.  This is because the database lists EB-5 Regional Centers by state, so those who are designated to operate in multiple states will be listed more than once.

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This blog was posted in: EB-5, Immigrant Visas
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