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Given the recent uptick in regional center closures, getting a USCIS Notice of Intent to Terminate (NOIT) or Notice of Termination (NOT) is cause for alarm. However, you can keep your regional center designation by providing a coherent response backed up by appropriate documentation.
If your regional center is about to close, contact Immiggreat or schedule a call with an associate for assistance.
Understanding a Notice of Intent to Terminate and a Notice of Termination from USCIS
Understanding what each sort of contact is and what it comprises is the first step in dealing with a NOIT or NOT. In many circumstances, there may be no clear method for responding to a NOIT or NOT. Alternatively, preparing a persuasive reply and fulfilling the response time may need ingenuity and expertise, so seek assistance from an experienced EB-5 consultant or immigration lawyer.
What is a Notice of Intent to Terminate from a Regional Center?
A NOIT is a type of communication between USCIS and a regional center owner or petitioner in which USCIS informs the petitioner of its intention to cancel the regional center license. There are several reasons why USCIS may issue a NOIT, but the two most prevalent are I failure to continue serving the goal of encouraging economic growth and (ii) failure to timely complete the yearly I-924A annual report with the requisite $3,035 USCIS filing fee.
When issuing a NOIT, USCIS officials must offer precise facts to ensure that the receiver can successfully resolve the problem(s) highlighted and present proof in opposition to the ground(s) stated for the prospective termination.
How should you reply to a NOIT on an apparent failure to continue to promote economic growth?
In layman’s words, this means that the projects under your regional center have not attracted any EB-5 investors, and the regional center is facing closure due to a lack of activity. The Appropriations Act of 1993, as modified, expressly permits regional centers “for the promotion of economic growth” through foreign national investment. USCIS lists the Act as the sole statutory basis for eliminating a regional center in the majority of NOITs. A regional center may be closed under the Act only if 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 Appropriations Act. 1993, Pub. L. 102-495. 106 Stat. 1828. 1874 [October 6, 1992] as amended).
Based on our observations, the feared NOIT for “lack of economic growth promotion” appears to be triggered directly by a paucity of EB-5 investors who have contributed cash to projects supported by the regional center in its designated geographic area. As a result, while there are no sponsored EB-5 investors, a crucial aspect in most NOIT answers is adequately articulating how the regional center is still fostering economic growth in its assigned geographic area.
USCIS provides new insight into how a regional center termination is considered when it comes to evaluating the promotion of economic growth in the Matter of W-S-R-C, an October 10, 2019, appeal of an Immigrant Investor Program Office decision. In particular, the USCIS examination includes both positive and negative aspects to evaluate whether or not economic growth promotion happened. USCIS said in the Matter of W-S-R-C (p. 2) that
The size of any job creation, the quantity of investment, and the total economic effect are all positive elements. Inaction, mismanagement, theft, or fraud by or on behalf of the regional center, any ensuing harm, and the risk put on investors or the economy are all negative elements. Any unfavorable variables should be evaluated in light of any mitigating or remedial steps taken by the regional center.
The regional center provided documentation in the Matter of W-S-R-C establishing that a specific project had been designated for EB-5 investment and demolition had already begun, but no EB-5 investment had occurred as of the time of the appeal. USCIS maintained that the regional center had not demonstrated adequate interest or affiliation with the initiative and hence terminated the regional center. USCIS based its argument on the regional center‘s failure to provide sufficient documentation proving that the identified project resulted in “increased export sales, improved regional productivity, job creation, and increased domestic capital investment, or other positive indicators of promotion of economic growth in the approved geographic area,” as required by 8 C.F.R. 204.6(m)(6)(i) (B).
It is crucial to note that the regional center was closed not because of a lack of EB-5 investment or active EB-5 projects, but because of “the inability to encourage economic development [within the defined geographic area].” The USCIS did not believe that the proposed EB-5 project’s development was adequate to demonstrate the “promotion of economic growth in the approved geographic region.” However, this does not preclude an identified real EB-5 project from meeting this burden if it has resulted in “increased export sales, improved regional productivity, job creation, and increased domestic capital investment, or other positive indicators of promotion of economic growth [in the approved geographic area].”
In another NOIT/NOT case involving a different regional center, USCIS rejected the regional center’s original response to a NOIT and issued a NOT with the following explanation:
The Regional Center was unable to take this project beyond the conceptual level. Simply actively exploring financially sound investment options and engaging in continuous attempts to develop more new projects is insufficient to demonstrate the Regional Center‘s potential to stimulate economic growth in the future, as required by the program. Since getting its designation, the Regional Center has not filed any amendments to USCIS for any projects, nor has it presented any proof that construction of any project has commenced.
Based on the foregoing, it is evident that just proposing a wishful thinking project in a NOIT answer is unlikely to be effective. To demonstrate the “promotion of economic growth [in the permitted geographic region],” a strong NOIT answer should provide proof of either “any amendment to USCIS for its projects” or “evidence that the development of any project has commenced.”
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 insufficient for demonstrating the Regional Center’s ability to promote economic growth in the future, as required by the program.
How long does it take a regional center to react to a NOIT?
According to 8 C.F.R. 204.6(m)(6), a regional center has 30 days after receiving a NOIT to respond to USCIS and present evidence in favor of avoiding termination.
What exactly is a Termination Notice?
In the case of regional centers, USCIS issues NOTs to notify regional center owners that their regional center license has been legally cancelled. There are several reasons why USCIS may issue a NOT, but the two most typical are I failure to reply to a NOIT in a timely manner and (ii) failure to adequately resolve the problems indicated in a previously issued NOIT.
How should you reply to a NOT over a claimed failure to continue to promote economic growth?
In layman’s words, this means that the projects under your regional center have not attracted any EB-5 investors, and the regional center is facing closure due to a lack of activity. The method is the same as for responding to the original NOIT, except that the regional center is formally closed before the answer. This is the final appeal against the termination. The best approach here for almost all regional centers will be to review the earlier section of this article and collaborate with an EB-5 consultant or immigration attorney to get creative with what additional supporting evidence could be provided to bolster the regional center’s position and counter the USCIS allegations in the NOT.
How long does it take a regional center to reply to a NOT?
If the regional center disagrees with a NOT, or if the regional center has new information indicating the decision to terminate was improper, the regional center may file a motion or an appeal by completing Form I-290B, Notice of Appeal or Motion, and submitting it together with the filing fee.
A brief or other written statement or other documentation in support of the motion or appeal may also be included by the regional center. Form I-290B must be submitted within 33 days of receiving the NOT. The NOT becomes final if no move or appeal is filed within 33 days.
In the case of an appeal, the regional center may request an extension of time to file a brief within 30 calendar days of filing the appeal. Any short, written statement, or evidence in support of an appeal that is not included with Form I-290B must be delivered directly within 30 days after the appeal’s filing (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. Review the notice carefully and examine the arguments mentioned to ensure that you fully grasp USCIS’s stance. 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 the 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 Immiggreat for Help with a USCIS Notice of Intent to Terminate or Notice of Termination
Our 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.