Considering the increase in regional center terminations over the last few years, receiving a USCIS Notice of Intent to Terminate (NOIT) or Notice of Termination (NOT) is cause for concern. However, you can avoid losing regional center designation by submitting a clear response supported by relevant evidence.
Understanding a USCIS Notice of Intent to Terminate and Notice of Termination
The first step to dealing with a NOIT or NOT is understanding what each type of correspondence is and what each one entails. In many cases, there may not be an obvious strategy in crafting a response to a NOIT or NOT. Alternatively, developing a compelling rebuttal and meeting the response deadline may require creativity and experience, so you should consider seeking help from an experienced EB-5 consultant or immigration lawyer.
What is a Regional Center Notice of Intent to Terminate?
A NOIT is a form of communication between USCIS and a regional center owner or petitioner through which USCIS notifies the petitioner of its intent to terminate the regional center license. There are many reasons why USCIS may issue a NOIT, but the two most common reasons are (i) failure to continue to serve the purpose of promoting economic growth and (ii) failure to timely file the annual I-924A annual report with the required USCIS filing fee of $3,035.
USCIS officials must include specific details when issuing a NOIT to ensure that the recipient can effectively address the problem(s) identified and provide evidence in opposition to the ground or grounds alleged for the potential termination.
How should you respond to a NOIT related to an alleged failure to continue to serve the purpose of promoting economic growth?
In simple terms, this refers to the projects under your regional center not having found any EB-5 investors and the regional center facing termination for lack of activity. The Appropriations Act of 1993, as amended, which authorizes regional centers, explicitly enables them “for the promotion of economic growth” through investment by foreign nationals. In most NOITs, USCIS identifies the Act as the sole statutory basis for terminating a regional center. A regional center may be terminated under the Act only when it “no longer serves the purpose of promoting economic growth, including increased export sales, improved regional productivity, job creation, and increased domestic capital investment” (see Section 610(a) of the Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations Act. 1993, Pub. L. 102-495. 106 Stat. 1828. 1874 [October 6, 1992] as amended).
Based on our experience, it appears that the dreaded NOIT for “lack of promotion of economic growth” is caused directly by a lack of EB-5 investors who have contributed funds in projects sponsored by the regional center in its approved geographic area. Therefore, a key factor in most NOIT responses is sufficiently addressing how the regional center is still promoting economic growth in its designated geographic area, even though there are no sponsored EB-5 investors.
In the Matter of W-S-R-C, an October 10, 2019, appeal of an Immigrant Investor Program Office decision, USCIS provided additional insight into how a regional center termination is evaluated when it comes to determining the promotion of economic growth. Specifically, the USCIS evaluation considers both positive and negative factors to determine whether the promotion of economic growth has occurred or not. In the Matter of W-S-R-C (p. 2), USCIS stated that
Positive factors include the extent of any job creation, the amount of investment, and the overall economic impact. Negative factors include inaction, mismanagement, theft, or fraud by or otherwise affecting the regional center, any resulting damage, and the risk imposed on investors or the economy. An evaluation of any negative factors should take into consideration mitigating or corrective actions taken by the regional center.
In the Matter of W-S-R-C, the regional center submitted documents demonstrating that a specific project had been identified for EB-5 investment and demolition had already commenced, but no EB-5 investment had taken place as of the time of the appeal. USCIS took the position that the regional center failed to establish sufficient involvement or association with the project and still terminated the regional center. USCIS based its argument on the position that the regional center had failed to offer sufficient documents confirming that the identified project had led to “increased export sales, improved regional productivity, job creation, and increased domestic capital investment or other positive indicia of promotion of economic growth in the approved geographic area,” as per 8 C.F.R. § 204.6(m)(6)(i)(B).
It is important to realize that USCIS did not specifically state that the regional center was being terminated due to a lack of EB-5 investment or active EB-5 projects, but due to “the failure to promote economic activity [within the designated geographic area].” The USCIS did not agree that the progress of the intended EB-5 project was sufficient to demonstrate the “promotion of economic growth in the approved geographic area.” But that does not necessarily mean that this burden could not be met by an identified real EB-5 project that has led to “increased export sales, improved regional productivity, job creation, and increased domestic capital investment or other positive indicia of promotion of economic growth [in the approved geographic area].”
In a different NOIT/NOT situation involving another regional center, USCIS rejected the regional center’s initial response to a NOIT and issued a NOT with the following explanation:
The Regional Center has failed to develop this project past the conceptual stage. Simply actively seeking financially sound investment opportunities and being engaged in ongoing efforts to identify additional new projects is not sufficient for demonstrating the Regional Center’s ability to promote economic growth in the future, in line with the program requirements. The Regional Center has not submitted any amendment to USCIS for its projects or provided any evidence that the development of any project has begun since receiving its designation.
Based on the above, it is clear that just submitting a pie-in-the-sky project in a NOIT response is unlikely to be successful. A strong NOIT response should contain evidence of either “any amendment to USCIS for its projects” or “evidence that the development of any project has begun” to demonstrate the “promotion of economic growth [in the approved geographic area].”
According to USCIS, proof that the regional center is “actively seeking financially sound investment opportunities and being engaged in ongoing efforts to identify additional new projects is not sufficient for demonstrating the Regional Center’s ability to promote economic growth in the future, in line with the program requirements.”
How long does a regional center have to respond to a NOIT?
Pursuant to 8 C.F.R. 204.6(m)(6), a regional center is provided 30 days from the receipt of a NOIT to respond to USCIS and offer evidence in support of avoiding termination.
What is a Notice of Termination?
In the context of regional centers, USCIS issues NOTs to inform regional center owners that it has officially terminated the regional center license. There are many reasons why USCIS may issue a NOT, but the two most common reasons are (i) failure to timely respond to a NOIT and (ii) failure to sufficiently address the issues outlined in a previously issued NOIT.
How should you respond to a NOT related to an alleged failure to continue to serve the purpose of promoting economic growth?
In simple terms, this refers to the projects under your regional center not having found any EB-5 investors and the regional center facing termination for lack of activity. The strategy here is the same as for responding to the initial NOIT, although at this point the regional center is officially terminated prior to the response. This is a final appeal of the termination. For almost all regional centers, the best approach here will be to review the earlier section of this article and work with an EB-5 consultant or immigration attorney to get creative with what additional supporting evidence could be provided to bolster the position of the regional center and counter the USCIS allegations in the NOT.
How long does a regional center have to respond to a NOT?
If the regional center disagrees with a NOT, or if the regional center has additional evidence showing that the decision to terminate is incorrect, the regional center may file a motion or an appeal by completing a Form I-290B, Notice of Appeal or Motion, along with the filing fee.
The regional center may also include a brief or other written statement or other evidence in support of the motion or appeal. Form I-290B must be filed within 33 days of the date of the NOT. If a motion or appeal is not filed within 33 days, the NOT is final.
For an appeal, the regional center may request additional time to submit a brief within 30 calendar days of filing the appeal. Any brief, written statement, or evidence in support of an appeal that is not filed with Form I-290B must be directly sent within 30 days of filing the appeal (see C.F.R. 103.3 and 103.5).
Best Practices for Responding to a Notice of Intent to Terminate or Notice of Termination
Although receiving a NOIT or NOT from USCIS can be intimidating, breaking the response process down into four steps makes formulating a response more manageable. To ensure that you fully understand USCIS’s position, carefully review the notice and research the points raised. Formulate a response based on the information you’ve gathered, and send your reply to USCIS, taking care to adhere to all submission guidelines.
How to review a NOIT or NOT
USCIS notices typically follow the same basic format. A NOIT begins with a notification of USCIS’s intent to terminate the regional center license. This part of the document contains information vital to the successful submission of your response, particularly the submission deadline and procedures.
The deadline for submitting your response is the date on which USCIS must receive your response, not the date on which you mail the response. To ensure that you reply before the deadline, mark the submission deadline on at least one calendar—and mark the last day on which you can mail or courier your response to USCIS.
When submitting your response, you must include the first page of the NOIT as the cover page for your response packet. Thus, make a copy of the response for your records, and consider making an additional copy that you can mark up as you work through the notice.
The body of the notice begins with a summary of the reasons for USCIS’s decision. It then goes into more detail, first setting out the procedural history, which includes information about, for example, the initial designation and data provided in annual reports. Subsequently, USCIS presents its analysis of the regional center’s operations, highlighting the perceived problems under individual subheadings.
While reviewing the points USCIS raises, highlight individual issues, including the laws, regulations, and other sources USCIS cites in the notice. If you know and understand the relevant sources, begin listing evidence that addresses these points.
How to clarify the issues raised in a NOIT or NOT
Research the sources on which USCIS bases its claims. These sources usually include laws; USCIS regulations, memorandums, and guidelines; and cases adjudicated and precedents set by the Board of Immigration Appeals (BIA), Administrative Appeals Office (AAO), Board of Alien Labor Certification Appeals (BALCA), Courts of Appeal, and the Supreme Court. It could be that the sources cited in the notice have been taken out of context, or the decision could be inconsistent with other USCIS guidelines, memorandums, or standard operating procedures. Adjudicators can make mistakes.
Once you understand the content and application of the sources on which USCIS has based the points listed in the notice, begin formulating your response by addressing each point. If after you’ve conducted extensive research you’re not sure how to address a point, contact an EB-5 consultant or lawyer for assistance. Remember, if you don’t address all the concerns raised in the notice, USCIS will probably terminate the regional center license, so do try to formulate a complete response.
How to formulate a response to a NOIT or NOT
The key to formulating an effective response to a USCIS notice is presenting documentary evidence that addresses each point raised in a well-organized, clear format. Use the original notice as a basis for structuring your response, mirroring the order of the information to show that you’ve addressed each point raised in the notice and that you’re providing evidence relevant to the issues. Be sure to clearly indicate whether information is fact or analysis.
Because each regional center’s situation is unique, each response requires unique evidence, and USCIS does not demand specific information from regional centers. Instead, use your discretion to decide which evidence best supports your position. Research which evidence is likely to be successful, and take care with how you frame the response around the evidence available.
To organize the content in a way that’s easy for the reader to follow, use appropriate headings and subheadings. Where possible, present dense text as bullet points or numbered lists. Keep paragraphs relatively short to ensure the text remains as easy to read as possible, and use charts, graphs, and visual aids to present data.
Once you’ve formulated your response and gathered the required evidence, collate the documents needed for the response packet. The original notice must appear on top, followed by the cover letter, and then the supporting evidence. Once you’ve assembled the documents, make a copy for your records.
How to submit the response to a NOIT or NOT to USCIS
Submit your response to the address listed in the original notice. Use this address even if you’ve previously sent information to USCIS at a different address. If you send your response to the wrong address, you might miss the response deadline.
Make sure your response reaches USCIS on or before the response deadline. If you mail your response, use priority or certified mail—you must receive a delivery confirmation that serves as proof that the response was delivered by the deadline. If the deadline is too close to warrant mailing the response, use a next-day or overnight courier service.
Attach the proof of delivery and the proof of receipt from USCIS to your copy of the response packet. At this point in process, USCIS will consider your response and reply with its decision through a subsequent notice. Wait times can vary.
Contact EB5 Affiliate Network for Help with a USCIS Notice of Intent to Terminate or Notice of Termination
The EB5 Affiliate Network team can help you address regional center termination issues. Contact us today or schedule a call with an associate to find out how we can help you maintain your regional center designation.