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 they each entail. 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?
An NOT is a form of communication between USCIS and a regional center owner or petitioner through which USCIS notifies the petitioner 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
Carefully review the NOIT or NOT
A NOIT typically covers five topics: the background to the application, the law, the evidence already submitted, the additional evidence needed, and the deadline. One of the first things you should do upon receiving a NOIT or NOT is take note of the date the NOIT or NOT was issued and the number of days given to respond. Be sure to mark the deadline on at least one calendar. Note that the deadline indicates when the response packet must be received by USCIS, not the postmark date.
You should make at least one copy of the NOIT or NOT for your records; the original will constitute the first pages of your response packet. In addition to a copy for your records, consider making a copy of the NOIT or NOT to mark up as you work through it.
Next, compare the list of all materials already submitted to the evidence referenced in the NOIT or NOT. Sometimes documents go missing or adjudicators overlook evidence. Carefully read the NOIT or NOT and note the evidence USCIS is requesting as you go. USCIS expects specific documents that clearly prove your case to address the issues raised. If you aren’t sure about what evidence will satisfy a particular request, you’ll need to conduct some research, consult a lawyer, or contact an EB-5 consultant. You must reply to every request—failing to do so will likely result in termination of the regional center.
Research the items raised in the NOIT
After carefully reading through the NOIT or NOT and listing the specific allegations made by USCIS, research the laws, regulations, or other sources cited as support. Typically, a NOIT or NOT cites regulations, memorandums, and USCIS guidelines in addition to cases and precedents set by the Administrative Appeals Office (AAO), Board of Immigration Appeals (BIA), Board of Alien Labor Certification Appeals (BALCA), Courts of Appeal, and the Supreme Court.
At times, the support cited by USCIS is taken out of context or is inconsistent with other USCIS guidelines, memorandums, or standard operating procedures. A NOIT or NOT may also request information that has already been filed or, in some cases, ask for information that simply does not exist. USCIS adjudicators are not infallible and, sometimes, mistakes are made.
Collect and compile the requested evidence for the NOIT or NOT response
A NOIT or NOT can be successfully overcome by providing the necessary evidentiary documentation in a clear and well-organized format. Use headings, subheadings, numbering, and bullet points as necessary to keep the content organized. Avoid lengthy paragraphs, and be sure to clearly indicate whether the content is fact or analysis. Present any data using graphs and charts or other visual aids. Use the information in the NOIT or NOT to structure a comprehensive, thorough response. When drafting the response cover letter, mirror the NOIT or NOT to clearly demonstrate that the response packet fully addresses every issue raised. This will create a clear roadmap for the adjudicator showing how the response offers proof for each point included in the NOIT or NOT.
Most NOIT or NOT communications from USCIS will not ask for specific documents or other pieces of evidence. Instead USCIS will leave the choice of supporting evidence in support of the position(s) taken by the regional center to the regional center’s discretion. Therefore, it is the regional center will probably want to determine what additional evidence to present in the NOIT or NOT response. It is crucial to research what types of evidence are most likely to be successful and how to frame the NOIT or NOT response around available supporting evidence.
Once you have gathered all the evidence requested, arrange the response packet with the original NOIT or NOT on top, followed by a cover letter, and then any supporting evidence. Once you have completed the response packet, make an exact copy for your records.
Send the NOIT or NOT response to USCIS
The NOIT or NOT will indicate the address to which you should mail your response. Be sure to use this address even if you have sent other correspondence to USCIS at a different address. If you send your response to the wrong address you could miss the deadline or, at best, delay processing.
Send the response via priority or certified mail with some form of delivery confirmation, which will serve as proof that the NOIT or NOT response was delivered to USCIS by the deadline. If sending the response on or near the deadline, you should send it using a next day or overnight delivery that would adequately ensure the response is delivered on time. Remember that the response deadline applies to the receipt—not the mailing—of the response. In other words, USCIS must receive your response on or before the deadline. The mailing date is irrelevant.
Once you receive proof of receipt from USCIS, attach it to your copy of the response packet. Upon receiving your response to the NOIT or NOT, USCIS will usually take further action on your application within a few months—but wait times can vary greatly.
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.