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Form I-924A Best Practices: Preparation, Procedures, and Compliance

Each year, every designated EB-5 regional center must submit Form I-924A, Annual Certification of Regional Center, to United States Citizenship and Immigration Services (USCIS) to prove that it remains eligible for regional center designation. According to USCIS, a regional center is a private or public economic unit that “promotes economic growth (including increased export sales, improved regional productivity, job creation and increased domestic capital investment).”

To demonstrate continued eligibility for EB-5 regional center designation, regional center principals must know how to prepare, complete, and submit Form I-924A to prove that the regional center has promoted economic growth—and that it continues to promote economic growth. Additionally, given the recent regional center termination trends, understanding how to avoid a Notice of Intent to Terminate (NOIT) related to inactivity is essential.

The Basics of Form I-924A

Form I-924A must be filed annually for every federal fiscal year, within 90 days of the end of the fiscal year. The federal fiscal year runs from October 1 to September 30, so the form must be filed on or before December 29. For new regional centers, the first filing year depends on the date on which the letter of designation was issued. If the letter is dated on or before September 30, the regional center must file Form I-924A for that fiscal year. If the letter is dated on or after October 1, the regional center must file its first Form I-924A in the next fiscal year.

The earliest date on which a regional center can file its Form I-924A is October 1. The current filing fee is $3,3035, although this may change in the future. The most up-to-date information about filing fees is available on the USCIS website.

On August 3, 2020, USCIS published a final rule increasing filing fees, with the increases set to come into effect on October 2, 2020. The filing fee for Form I-924A was to increase from $3,035 to $4,465 on that date. However, on September 29, 2020, the U.S. District Court for the Northern District of California issued a preliminary injunction and stay of implementation of the fee rule until cases challenging the rule have been adjudicated.

Failing to file Form I-924A before the December 29 deadline, filing an incomplete form, or omitting important supporting documents can result in being issued a NOIT. Additionally, this may cause concern about the management practices at the regional center, leading to increased scrutiny from USCIS. During the Form I-924A adjudication process, USCIS also uses the information contained in the form to perform background checks on regional center owners and principals and the principals involved in sponsored projects. If an adjudicator is dissatisfied with the outcome of a background check, they might issue a NOIT.

Preparing to Complete Form I-924A

Properly completing and submitting Form I-924A can be challenging, especially for new regional centers and centers sponsoring multiple projects. It is best to start preparing now. The services of EB-5 professionals can be invaluable when preparing for I-924A submission. Because capital investment and job creation must be addressed clearly and in a manner that meets USCIS’s expectations, regional centers should consult, at the very least, an economist while preparing their forms.

The effort that goes into preparing Form I-924A has additional benefits. Gathering the documentation and organizing the information simplifies the preparation required for regional center compliance audits and Form I-829 petitions. The information needed for Form I-924A relates to regional centers as well as new commercial enterprises.

3 Key Steps in Form I-924 Preparation

The most important steps in the preparation process are reviewing Form I-924A and the USCIS filing instructions, gathering the necessary information and supporting documents, and enlisting the help of the required EB-5 practitioners.

  • 1. Understanding Form I-924A

Many of Form I-924A’s instructions are ambiguous and confusing, so understanding what is needed is the first challenge. Because every regional center engages in unique activities, it is difficult to find clear guidance. Working with an EB-5 professional who has experience with I-924A submissions is helpful.

USCIS temporarily published an incorrect version of the form and instructions on its website. Be sure to check the edition date of both the form and instructions, which appears on the bottom left of each page. The 11/21/19 edition is the only version USCIS accepts.

  • 2. Gathering Information and Supporting Documents

Understanding the requirements of Form I-924A leads to the next step: gathering the necessary information and supporting documents. Depending on the regional center’s activities during the last fiscal year, the regional center may need to meet with the new commercial enterprises (NCEs) and developers involved in the projects they sponsor to collect evidence of direct employment and revenues and expenses that influence indirect and induced job creation calculations.

For most supporting documents, regional centers should submit clear copies. Original documents should be submitted only when USCIS specifically asks for them. If an original is submitted instead of a copy when a copy should have been submitted, USCIS may destroy the original. However, USCIS may request original documents during the adjudication process, which it will return. Furthermore, if a document contains information in a foreign language, a certified translation of the document must be submitted.

  • 3. Enlisting the Help of Experienced EB-5 Professionals

An EB-5 practitioner such as EB5AN can help with not only with the accurate completion of the form but also with aspects such as process management, clear reporting, and the creation of project summaries. Additionally, job creation is a key aspect of economic growth and thus a focal point of the I-924A. Regional centers should consider working with an economist with EB-5 experience to prepare these calculations. Finally, an immigration attorney who specializes in the EB-5 program should review the I-924A before it is submitted.

Completing Form I-924A

The 11 parts of Form I-924A are designed to capture information about four key topics:

  1. The regional center’s ownership (Parts 1 and 4)
  2. The regional center’s management (Parts 2 and 4)
  3. Aggregate capital investment and job creation (Parts 5 and 6)
  4. EB-5 applications filed by investors who invested in projects sponsored by the regional center (Part 7)

Because of the unique and diverse circumstance of regional centers, the form includes a section at the end (Part 11) for additional information that does not fit into Parts 1 to 10. In a 2017 webinar, USCIS further clarified that regional centers may include printed attachments in Word or Excel format to further clarify information if the attachments clearly show which part and question the information relates to. In addition, each page of each attachment must include the date and the signature of the authorized individual, or the person submitting the form.

Completing Parts 5 and 6: Information about the Regional Center’s Operations and the NCE

Parts 5 and 6 of Form I-924A take the longest to complete. In these sections, the regional center must provide evidence of the aggregate capital investment (EB-5 and non-EB-5) and job creation in each industry category by North American Industry Classification System (NAICS) code for the reporting period indicated in Part 3 of the form. However, USCIS has not provided guidance on how to allocate capital investment according to industry category.

  • Recording Aggregate Capital Investment Amounts on Form I-924A

Recording capital investment amounts can create confusion, especially when funds are held in escrow. Because capital investment does not occur until the funds have been released to the NCE and the funds may be held in escrow until the next federal fiscal year, the sum of a regional center’s investor funds might exceed the aggregate EB-5 capital investment. Similarly, the amount of funds the regional center releases from escrow to the NCE might not match the funds released from the NCE to the job-creating enterprise (JCE) in a fiscal year. This type of discrepancy must be clarified in an attachment or footnote.

  • Calculating Job Creation for Form I-924A

When calculating job creation for Form I-924A, the economist should use the same economic methodology used when each sponsored project was submitted to USCIS or the most recent methodology approved by USCIS for the project. However, if the EB-5 project differs from the project contemplated in a Form I-924 or I-526 petition submitted previously, the economist should use the methodology that will be used in the related Form I-829 petitions. USCIS seems to favor accepted economic impact models.

The economist should calculate the aggregate capital investment and job creation for each NAICS category on which projects sponsored by the regional center have focused. Their report should also include pro rata job-creation calculations for each project for the preceding federal fiscal year based on information provided by each NCE or developer. It is important to include a description of these pro rata inputs and calculations and how they relate to the expect job-creation total for each project.

Internal Consistency and Consistency Within EB-5 Immigration Petitions

One of the easiest ways to ensure that USCIS will question the competency of a regional center’s management team is to submit an I-924A that contains inconsistencies between sections. For example, when multiple NCEs are listed, the figures related to aggregate capital investment and job creation in Part 5 should match the total capital investment and job creation for individual NCEs listed in Part 6. In other words, the basic arithmetic must be correct throughout the form. Moreover, discrepancies that arise from the timing of the release of funds, for example, should be explained and not left to look like an error or an oversight.

Similarly, the job creation numbers in the I-924A should match the numbers listed in other immigration petitions (Forms I-526 and I-829) filed by EB-5 investors who have invested in projects the regional center sponsors. However, the job creation numbers reported in the I-924A should reflect the actual direct, indirect, and induced jobs created by all sponsored projects during the reporting period. If the regional center does not sponsor a project involving a troubled business, it should not include maintained jobs.

Addressing a Lack of Capital Investment or Job Creation

Since the 2019 federal fiscal year, the Immigrant Investor Program Office has terminated several hundred EB-5 regional centers. Between February 7, 2020, and September 17, 2020, alone, 184 regional centers were terminated, with the number of approved centers dropping from 1,212 to 1,028. Most of these terminations were based on a lack of activity.

To avoid receiving a NOIT based on lack of activity, especially if previous I-924A submissions showed limited or no job creation or capital investment, regional centers can employ three strategies. They can include evidence that they have pursued EB-5 projects to sponsor, highlight relevant market factors contributing to inactivity, and reference Matter of A-L-V- LLC.

  • 1. Providing Evidence of Pursuing EB-5 Projects to Sponsor

Being unable to show successful capital investment or job creation does not mean a regional center has not taken action to promote economic growth. In this situation, the regional center must demonstrate that it has pursued EB-5 projects to sponsor to “[concentrate] pooled investment as required by section 610 of the Appropriations Act” (USCIS Policy Manual, vol. 6, part 6, ch. 3).

Evidence of these efforts can include proof that the regional center conducted due diligence on potential EB-5 projects such as targeted employment area analyses or feasibility studies and letters of intent to sponsor EB-5 projects. Likewise, documentation showing requests for real estate entitlement or permits, such as contracts with engineering or design firms or environmental impact reports, are helpful in this regard. Regional centers can also include evidence of collaboration with other professionals and organizations, such as marketing firms, banks, developers, and immigration attorneys, to seek investment and thus improve productivity and job creation within the regional center’s geographic scope.

  • 2. Highlighting Relevant Market Factors

Numerous market factors affecting the EB-5 program complicate the process of finding EB-5 projects to sponsor and EB-5 investors willing to invest in sponsored projects. One of the most significant of these stems from USCIS. Obtaining approval for an I-924 amendment or exemplar takes, on average, 18 months. Obtaining Form I-526 approval is equally slow. This makes marketing EB-5 projects to investors particularly difficult, as most investors disregard projects without exemplars.

  • 3. Referencing Matter of A-L-V- LLC

In Matter of A-L-V- LLC, the regional center was ultimately terminated despite an appeal, but only after seven years of inactivity. Conducting thorough due diligence is an essential part of establishing a successful EB-5 project, and it is reasonable to carefully plan these projects and reject those that do not pass the due diligence process. The EB-5 marketplace is highly competitive, and it is crucial to be prudent.

Submitting Form I-924A

Once the form has been completed, the regional center’s principal or accredited representative must sign it. If an accredited representative or attorney completed the form, the person must submit Form G-28, Notice of Entry of Appearance as Attorney or Accredited Representative with Form I-924A. If an interpreter was used during the completion of the form, the interpreter must complete the sections pertaining to them.

After the signed form and all supporting documents have been collated to create a cohesive, organized submission pack, an EB-5 immigration attorney should review it, if an attorney has not done so at this point. Then, the regional center must copy the documents to create an exact duplicate before submitting the submission pack.

Form I-924A must be submitted to USCIS’s California Service Center, rather than the IPO, along with the exact, correct filing fee in the form of a check or money order payable to U.S. Department of Homeland Security. Remember to check the USCIS fee schedule for the current filing fee.

USCIS will issue a notice of receipt within 21 days of submission. Regional centers who do not receive a receipt notification should contact USCIS

EB5AN Form I-924A Services

As the owner and operator of USCIS-approved regional centers that cover more than 20 states, EB5AN has extensive experience with the I-924A process. Contact EB5AN today to find out how we can help you with everything from your annual I-924A submission to dealing with a NOIT.