“Suzanne Says” is an opinion column on iiusa.org written by IIUSA Member Suzanne Lazicki. The views of the author are their own and do not necessarily reflect the views or position of IIUSA. The below information is not legal advice.
By Suzanne Lazicki, originally published on LucidText.com
On December 21, USCIS made unannounced additions to the EB-5 Resources page. The section formerly titled EB-5 Questions and Answers (updated Oct. 2023) has been replaced by a different EB-5 Questions and Answers (updated Dec. 2023). A document comparison between the October and December versions shows that USCIS did not edit the previously-published content, but added four new questions and answers related to regional center withdrawals, I-956G and Integrity Fee requirements, investor eligibility following regional center termination, and how the sustainment period change affects the conditional permanent residence requirement.
New Q&A quoted from EB-5 Questions and Answers (updated Dec. 2023)
13. How can an approved regional center that does not wish to continue participation in the Regional Center Program withdraw from the Regional Center Program?
The EB-5 Reform and Integrity Act of 2022 (RIA) did not change the process for withdrawing from the Regional Center Program and requesting a termination of a regional center designation. When an approved regional center does not want to continue participating in the Regional Center Program for any reason, a regional center may withdraw from the program and request a termination of its regional center designation pursuant to 8 CFR 204.6(m)(6)(vi). The regional center must notify USCIS of its withdrawal in the form of a letter or as otherwise requested by USCIS. Once USCIS receives a termination request is received, we will evaluate the request and notify the regional center of our decision on the termination request in writing.
Regional centers can mail the letter to:
U.S. Citizenship and Immigration Services
Immigrant Investor Program Office,
131 M Street, NE, 3rd Floor, Mailstop 2235,
Washington, DC 20529
Or the regional center can email the letter to: uscis.immigrantinvestorprogram@uscis.dhs.gov
14. Where can I find information about approved or terminated regional centers and the reasons for termination?
USCIS publishes a list of approved and terminated regional centers on our website. In addition, USCIS publishes termination notices that are final agency actions in the electronic reading room.
USCIS approved regional centers
USCIS terminated regional centers
USCIS regional center termination notices [Suzanne’s editorial comment: do not bother clicking on this link. USCIS has not published termination notices since 2018.]
15. Do all designated Regional Centers, including those approved prior to March 15, 2022, need to file an I-956G by December 29?
Yes, INA 203(b)(5)(G) requires that each designated regional center shall submit an annual statement, in a manner prescribed by the Secretary of Homeland Security. The Secretary has designated the Form I-956G, Regional Center Annual Statement, as the manner to collect this information. The instructions for the Form I-956G implement the statutory requirement and provide that each approved regional center must file Form I-956G for each federal fiscal year (Oct. 1 through Sept. 30) on or before Dec. 29 of the calendar year in which the federal fiscal year ended. It’s important to note that these dates relate to regional center designation. If a regional center is designated but has a pending amendment, they still need to file the Form I-956G. Form I-956G and its filing requirements were published in the Federal Register on Sept. 2, 2022, 87 FR 54233. Following public notice and comment, Form I-956G was approved by OMB on July 24, 2023, and subsequently published for use by USCIS. USCIS has also mentioned the filing requirements previously at stakeholder engagements as well as via alerts on our website, including most recently at the Oct. 30, 2023, joint engagement with the CIS Ombudsman and the Nov. 6, 2023, alert on the USCIS website.
For regional centers that fail to file Form I-956G by the required filing date, INA 203(b)(5)(G)(iii) states that USCIS shall sanction designated regional centers that do not file the required annual statement (which DHS designated as Form I-956G). In accordance with this statutory directive, USCIS will sanction regional centers who fail to comply with the requirement to file their Form I-956G, up to and including termination from the Regional Center Program.
3. Can EB-5 investors continue to pursue their immigrant visa petitions and receive benefits if their regional center is terminated for failure to pay the EB-5 Integrity Fund Fee, provided all other eligibility requirements are met?
Yes, EB-5 investors associated with a terminated regional center may retain eligibility and receive benefits under certain circumstances as provided by INA 203(b)(5)(M). However, pre-RIA investors and post-RIA investors may need to take different actions to retain their eligibility because of the different requirements and legal provisions that apply to them.
Pre-RIA investors may, in certain situations, remain eligible based on indirect jobs, as applicable to their petition before the RIA was enacted notwithstanding termination of their associated regional center. Accordingly, where regional center termination is based on failure to pay the EB-5 Integrity Fund fee, which would generally not otherwise directly affect or implicate the underlying investment or job creation, officers may generally determine, in their discretion and on a case-by-case basis, that a pre-RIA investor associated with a terminated regional center continues to be eligible for classification as an immigrant investor, despite the regional center termination and without the need to reassociate with another approved regional center or make an investment in another new commercial enterprise. Such determinations will be made in accordance with applicable USCIS policy regarding deference to prior determinations to ensure consistent adjudication. Also, USCIS will generally not consider such termination a material change that impacts continued eligibility. While regional center termination for failure to pay the required EB-5 Integrity Fund fee may generally not have an effect on pre-RIA investor eligibility in many, or even most, circumstances, it is certainly possible that an investor may invest with a regional center that both fails to pay the required EB-5 Integrity Fund fee and also have project-related eligibility concerns, such that petitioner eligibility is affected separate from the regional center’s termination for failure to pay the required EB-5 Integrity Fund fee. If the pre-RIA investor’s eligibility is affected, they may need to reassociate with another approved regional center or make an investment in another new commercial enterprise to retain eligibility under INA 203(b)(5)(M) since they may not continue to be eligible.
Post-RIA investors, however, are not subject to the same grandfathering provisions of the RIA as pre-RIA investors but are subject to the new requirements added by the RIA, such as the requirement under INA 204(a)(1)(H)(ii) to remain associated with an approved project application under INA 203(b)(5)(F) (Form I-956F). Consequently, post-RIA investors associated with a terminated regional center may retain their eligibility under INA 203(b)(5)(M) if:
Their new commercial enterprise reassociates with another approved regional center (regardless of the regional center’s designated geographic area); or
They make a qualifying investment in another new commercial enterprise. In either case, post-RIA investors should generally continue to be associated with an approved Form I-956F (filed by their new regional center for their existing new commercial enterprise or otherwise associated with the different new commercial enterprise into which they have invested) for purposes of remaining eligible under all applicable requirements.
USCIS will notify investors of the termination of their associated regional center, and impacted investors generally have 180 days after USCIS has provided them such notice to amend their petition to meet applicable eligibility requirements.
4. Is it possible for an immigrant investor who has invested their capital for the requisite time period and created the requisite number of jobs prior to obtaining lawful permanent resident status to become a lawful permanent resident without conditions under INA 216A, effectively skipping the conditional residence period?
No. The RIA did not change the requirement under INA 216A that all EB-5 investors obtain lawful permanent resident status on a conditional basis subject to having those conditions removed by satisfying applicable requirements under INA 216A. All EB-5 investors who obtain conditional permanent resident status subject to INA 216A must file a Form I-829 within the 90-day period immediately before the second anniversary of their adjustment of status or their admission to the United States as a conditional permanent resident to remove their conditions.
