Preparing to file I-924A Annual Certification

It appears that a Continuing Resolution will extend regional center program authorization at least into December 2018. (I add detail and updates as available to my Washington Updates page.) Assuming business as usual, regional centers should think about preparing to file the Form I-924A annual report. Regional centers use Form I-924A to demonstrate continued eligibility for regional center designation. Regional centers that remain designated for participation in the program as of September 30 of a given year must submit Form I-924A with the required supporting documentation on or before December 29 of that same year.

FILING INSTRUCTIONS

Here are links to official information, instructions, and tips from USCIS:

• I-924A form and instructions
• A detailed set of I-924A filing tips dated 9/8/2017
• A Q&A on the I-924A dated 9/8/2017
• A webinar dated 8/28/2017 that goes step-by-step through the I-924A form and instructions, with comments and tips

CHOOSING TO TERMINATE

If a regional center does not file I-924A, or files I-924A that does not demonstrate eligibility for continued designation, then USCIS will respond with a Notice of Intent to Terminate, and eventually terminate the designation. The regulations at 8 CFR 204.6(m)(6)(vi) also offer a relatively tidy alternative for regional centers who do not wish to stay designated: “A regional center may elect to withdraw from the program and request a termination of the regional center designation. The regional center must notify USCIS of such election in the form of a letter or as otherwise requested by USCIS. USCIS will notify the regional center of its decision regarding the withdrawal request in writing.”

The active method (formal withdrawal request) and passive method (just don’t file I-924A) have the same outcome: termination of regional center designation. The active method has the advantage, for what it’s worth, of getting a relatively nice letter back from USCIS. (Representative letters for comparison:  termination based on withdrawal, and termination for failure to file I-924A.)  The word “fail” appears eight times in the no-I-924A termination letter, and not at all in the withdrawal termination letter. Only the withdrawal termination letter template points out that “the withdrawal and termination do not preclude the filing of a new regional center application” and  “the facts and circumstances of the prior designation, withdrawal, and termination may still be considered in the adjudication of future regional center applications.”

PRACTICAL ADVICE

The instructions and tips from USCIS (linked in the first section above) are quite practical and detailed, so do read those carefully. The following section has a few additional lessons derived from my reading of the 207 regional center termination letters posted so far by USCIS. (I also maintain and share an ongoing log of all terminations and associated letters – another bit of generous work for which I am not much thanked.)

Avoidable reasons that regional centers have been terminated despite filing I-924A

• The I-924A was filed using the wrong edition of the form, to the wrong address, or missing the proper fee
• The I-924A got lost, and the RC could not show proof of mailing to prove that this loss wasn’t its fault
• The I-924A was not properly filed until after December 29

I-924A issues for active Regional Centers

• If the regional center has experienced any changes for which an amendment is required (such as changes in name, ownership, or structure), file the I-924 amendment before filing I-924A.
• Strive for clear consistency between the info provided in I-924A and the info reflected in the record of past filings, including past I-924A, I-924, and investor petitions. (I’ve seen multiple decisions that indicate that USCIS is cross-referencing I-924A with other filings, suspiciously watchful for any apparent inconsistencies. Of course projects and numbers change over time, but USCIS tends to see changes as aberrations and discrepancies that need explanation.)
• Double-check that the regional center entity is still active in good standing, and with an active business license. Remind USCIS with which Secretary of State and municipality the regional center is registered, so USCIS doesn’t check in the wrong place.
• Double-check the Regional Center website for any problematic material (such as images of the USCIS logo, any language that smells like a visa guarantee, or any apparent inconsistencies with the regional center information – e.g. name, ownership, managers – officially reported to USCIS)
• Google the regional center name and project names, see if any negative media stories appear, and consider preemptively explaining those stories as part of the I-924A

I-924A issues for Regional Centers with no EB-5 investment yet

• A regional center on its third year since initial designation with no EB-5 investment is in line for termination for failure to promote economic growth, unless it makes a compelling counterargument. (That three-year metric is not published anywhere, but evident in termination letters. USCIS takes 2-3 years just to adjudicate the application for initial designation – enough time in limbo for the RC to lose its originally-contemplated projects and partners – and then gives the RC only 2-3 years to start again from scratch before termination. Quite unreasonable, but the current practice.)
• A compelling counter-argument requires project evidence. In termination letters, USCIS does not admit to being impressed by evidence of marketing and promotional activities for the regional center, by due diligence on potential projects, or by general industry involvement. USCIS most wants to see evidence of projects imminently likely to use EB-5 investment. They seem to want to see project evidence related to timing (such as registrations, licenses, permits) and evidence related to firm commitment to do the project and include the regional center and EB-5 investment (such as signed term sheets, signed purchase agreements, loan commitments). The goal is to avoid USCIS deciding that “the evidence submitted relate only to potential projects and future aspiration goals” and “thus these projects are not relevant examples of the regional center’s ability to continue to promote economic growth” (to quote language repeated in multiple termination letters).  USCIS seems particularly fixated on the idea of “binding contractual obligation” and to particularly like finalized contracts and signed term sheets as evidence. (Again this advanced-project evidence demand is hardly reasonable – calling for status and commitments not consistent with the fact that USCIS will likely delay projects with years-long I-526 processing times. But the injustice has yet to be recognized.) There’s some evidence that having filed an amendment (especially one with I-526 exemplar request) can help support the activity argument, in lieu of being able to report filed investor petitions.
• These regional center termination letters discuss specific examples of project evidence provided to USCIS with Form I-924A, and why USCIS did not think the evidence of activity made for a compelling economic growth argument.
  • Greystone EB5 Southeast Regional Center, LLC
  • SPG Regional Center, LLC
  • Tacoma EB5 Regional Center, LLC
  • Encore Alabama-Florida Regional Center
  • Diamond City Montana EB-5 Regional Center
  • FreeMind Films Regional Center, LLC
  • Green Card Gateway Regional Center
  • Guam Strategic Development Regional Center
  • Immigration Funds, LLC
  • Lansing Economic Development Corporation Regional Center
  • Liberty South Regional Center
  • Live in America – Arizona Regional Center, LLC
  • Nevada California Regional Center, LLC
  • North Country EB-5 Regional Center, LLC
  • Tennessee Regional Center

FORM I-924A REVISIONS

If you’d like to advise USCIS about how to make the next edition of Form I-924A less faulty, you have until 11/13/2018 to do so through the Federal Register rulemaking comment process.

PLUG

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