Earlier this month, U.S. Citizenship and Immigration Services (USCIS) issued Notices of Intent to Terminate (NOITs) to EB-5 regional centers that they found were not in compliance with Reform and Integrity Act (RIA) requirements. The regional centers were issued the NOITs for failing to pay the annual EB-5 integrity fees. The NOITs caught many regional centers off guard who were confused by RIA requirements that necessitated two integrity fee payments in 2023.
Northern Rockies Regional Center, one such NOIT recipient, sued USCIS for what it claimed was a failure on the agency’s part to inform the regional center that they were not in compliance with RIA requirements. The regional center claims that its due process rights were violated as they were not allowed to address the late payments or provide a response to the agency. Earlier this week, U.S. District Court Judge Donald Malloy ruled that an injunction against USCIS terminations was warranted pending a final decision on the merits.
The injunction temporarily blocks USCIS from revoking a regional center authorization.
While USCIS has not formally addressed how many regional centers received NOITs, it has certainly caused a stir in the industry. On a webinar discussion hosted by IIUSA on July 18, it was suggested that over 100 regional centers may have received a termination notice. For a better assessment of the overall situation, IIUSA is collecting data from regional centers. If you or your client received a NOIT regarding the annual integrity fee, please fill out this simple Google Form. The data collected from this form is critical for IIUSA to engage in meaningful advocacy for this immediate issue.
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IIUSA Member Perspectives: EB-5 Integrity Fund NOITs: What Should You Do?
By D. Simone Williams, Partner, Williams Global Law
RESPOND, RESPOND, RESPOND! Not only should you timely respond to the NOIT, but you should also provide a factual and strong legal argument. During the panel, experts agreed that a simple plea for forgiveness with a check attached may not suffice. In fact, many panelists opined that sending a check with the payments may cause USCIS to return the mailed response, leading to an untimely submission determination. Instead, panelists leaned heavily on the need to submit factual and legal arguments.
First, IIUSA panelists encourage each regional center to provide factual arguments. Did your regional center miss both payments? Did it pay only one? Was your regional center waiting to receive approval for designation? Answer those questions factually.
Then, present your legal argument. Overwhelmingly, many will agree that USCIS language led to confusion. From changing due dates to vagueness about which fiscal year needed to be accounted for, one can derive a legal argument about the lack of clarity on an issue that would lead to mandatory termination. Additionally, experts in the session discussed that USCIS did not provide an option for remedy. Normally, USCIS would issue a Notice of Intent to Suspend or send correspondence up to 90 days after the due date to allow regional centers a timely remedy. Many attorneys will suggest an option for regional centers to pay integrity fees for both fiscal years and a late penalty fee offered to regional centers. Lastly, experts pointed out that USCIS has already used their discretion to extend the deadline in May 2023. Therefore, it is within the scope of their power to extend the deadline again to accommodate the hundreds of regional centers facing this issue.
