Chapter 8 - Sanctions and Discretionary Determinations

A. Sanctions

The EB-5 Reform and Integrity Act of 2022 (RIA) authorizes USCIS to levy different types of sanctions for noncompliance by various participants in the EB-5 program, including suspensions, debarment, and termination.

1. General Process

If USCIS determines that a violation has occurred and suspension, debarment, or termination is appropriate, USCIS issues a notice of intent to sanction to the affected individual or entity. The notice includes:

A summary of the violations; and
A description of the length, if applicable, and terms of the sanction, for example, whether the violation might be cured.

USCIS typically provides 30 days for response after issuing a notice of intent to sanction and may, in its discretion, consider responses received after 30 days.^[1] If USCIS determines, after considering any response, that suspension, debarment, or termination is warranted, USCIS issues a final notice of sanction explaining the reasons for the sanction.

USCIS may issue sanctions to more than one party for any given violation as needed. Each individual or entity receives their own notice for each sanction. For example, USCIS may both terminate a regional center and suspend an associated party.

USCIS may also issue more than one sanction to the same individual or entity for any given violation as needed. For example, USCIS may first suspend, but later, after a new notice of intent to sanction, terminate a regional center if the regional center does not take remedial action or new facts support a different sanction.

If USCIS terminates a regional center, it may end other sanctions against the entity. USCIS includes any such decision about earlier sanctions in the final notice of sanction.

A sanctioned individual or entity may appeal the sanction to the Administrative Appeals Office (AAO).^[2] Each party who receives their own notice of sanction must file their own appeal if they wish to contest the sanction.

Where applicable, USCIS considers all relevant factors when deciding on the appropriate severity of the sanction, including, but not limited to:

History of previous violations, including violations that predate March 15, 2022, and violations of other areas of the law;^[3]
The willfulness or recklessness of the violation, including concealment of material facts or prohibited actions;
Good faith attempts to achieve rapid compliance after notification of a violation;
Harm to the reputation or integrity of the EB-5 program;
Cooperation with USCIS or other governmental agencies;
Any relevant disciplinary history;
If an entity, senior management’s awareness of and involvement in the conduct;
If an entity, the entity’s risk management process, the comprehensive nature of its monitoring plan, and resource allocation;
If an entity, the level of training and communication about misconduct;
If an entity, its reporting structure and investigation process;
If an entity, the level of due diligence to its third party relationships;
If an entity, the impact of such a sanction on innocent parties;
Whether the violation involved a national security or public safety concern; and
Whether the violation involved either multiple or repeated instances of fraud or material misrepresentation.

Suspensions, debarments, and terminations are final upon the expiration of the period in which to file an appeal or, if appealed, upon the decision on that appeal. Investors need only reassociate within 180 days of their receipt of USCIS notification of the debarment or termination to take advantage of the ability to reassociate under INA 203(b)(5)(M).^[4]

2. Types of Sanctions

Suspensions

Suspensions typically last for the period specified in the notice or, as applicable, until the individual or entity cures the violation. A suspension continues until the end of the date specified in the notice, if included in the notice. If no date is listed, the suspension lasts until USCIS determines that the violation has been cured and notifies the individual or entity that it is lifting the suspension.

Generally, suspension refers to temporarily disallowing the suspended individual or entity from some or all forms of participation in the EB-5 program. For regional centers, a suspension does not terminate the regional center designation and the regional center must continue to comply with all requirements applicable to designated regional centers, including the filing of annual statements and annual payment of the EB-5 Integrity Fund fee. The notice identifies the specific activities in which the individual or entity is prohibited from participating.

In general, during the period a regional center is suspended:

USCIS may continue to adjudicate Immigrant Petitions by Regional Center Investor (Form I-526E) for investors affiliated with an approved Application for Approval of an Investment in a Commercial Enterprise (Form I-956F);
USCIS may hold adjudication of pending Form I-956F applications and any associated Form I-526E petitions; and
USCIS may reject or deny any new Form I-956F applications from the suspended regional center.

In general, during the period a new commercial enterprise or job-creating entity is suspended, where USCIS has approved a Form I-956F application, USCIS holds adjudication of investor Form I-526E petitions associated with that project.^[5]

Officers issuing notices of suspension, however, retain discretion to determine the scope of suspensions on a case-by-case basis.

Debarments

Debarment by USCIS typically prevents individuals or entities from participating in the EB-5 program, precluding all future involvement of the individual or entity with the EB-5 program. While the INA provides authority to terminate the participation of new commercial enterprises or job-creating entities in the EB-5 program,^[6] USCIS has not and does not designate new commercial enterprises or job-creating entities for participation in the program as it does and has done for regional centers. Moreover, these provisions of the INA do not distinguish between termination of a regional center’s designation and the other types of sanctions that could apply to new commercial enterprises or job-creating entities that would similarly end their participation in the EB-5 program, such as debarment.^[7]

Importantly, the good faith investor protections ^[8] only arise upon either the termination of a regional center or debarment of a new commercial enterprise or job-creation entity. Consequently, termination of a new commercial enterprise or job-creating entity other than debarment would not trigger these investor protections, contrary to Congressional intent. USCIS therefore interprets its authority to terminate the participation of new commercial enterprises or job-creating entities in the program as equivalent to debarment and debars such entities as appropriate under applicable authorities permitting their termination from the program.

In general, USCIS debars individuals or entities based on noncompliance with or prohibited conduct under applicable statutory provisions ^[9] and does not debar individuals or entities for merely failing to establish investor eligibility for visa classification or removal of conditions, such as not creating sufficient employment, or upon receipt of requests for debarment.

With respect to threats to the national interest and fraud, misrepresentation, deceit, and criminal misuse,^[10] USCIS also permanently debars any individual or entity associated with a regional center, new commercial enterprise, or job-creating entity that has had its designation or participation in the EB-5 program terminated or has been debarred on these grounds if USCIS determines, in its discretion, that such individual or entity was a knowing participant in the conduct that led to the termination or debarment.^[11] USCIS may consider debarment based on actual or constructive knowledge and direct or indirect participation.

If USCIS debars a regional center, new commercial enterprise, or job creating entity, it also notifies affected investors. Upon notification, affected investors have 180 days to reassociate with a new regional center, new commercial enterprise, or job creating entity.^[12]

Terminations

When USCIS terminates a regional center, that entity is no longer designated under the program and may not file project applications or solicit investors. If USCIS terminates a regional center, it also notifies affected investors. Upon notification, affected investors have 180 days to reassociate with a new regional center or new commercial enterprise.^[13]

B. Discretionary Determinations

USCIS denies or revokes the approval of an EB-5 related petition, application, or benefit (which may include termination of regional center designation or debarment of a new commercial enterprise or job-creating entity, as applicable) if USCIS determines, in its discretion, that approval of the petition, application, or benefit is contrary to the national interest for reasons relating to threats to public safety or national security, or if the petition, application, or benefit is predicated on or involved fraud, deceit, intentional material misrepresentation, or criminal misuse.^[14]

The exercise of discretion in all situations may not be arbitrary, inconsistent, or dependent on intangible or imagined circumstances.

1. National Interest Grounds

In general, under INA 203(b)(5)(N) threats to public safety may include, but are not limited to, aggravated felonies as defined at INA 101(a)(43). National security concerns may include, but are not limited to, activities described in INA 212(a)(3)(A) (general security and related grounds), (B) (terrorist activities), or (F) (association with terrorist organizations) or INA 237(a)(4)(A) (general security and related grounds) or (B) (terrorist activities).

2. Fraud and Related Grounds

Fraud and Intentional Material Misrepresentation

The statutory language of INA 203(b)(5)(O) differs from fraud and material misrepresentation findings otherwise made by USCIS for admissibility under INA 212(a)(6)(C). Existing agency guidance regarding fraud and misrepresentation in the inadmissibility context is specific to fraud or misrepresentation committed by an individual or entity against the U.S. government.

However, the authority to take adverse actions based on determinations under INA 203(b)(5)(O) with respect to whether an EB-5 petition, application, or benefit is predicated on or involves fraud or misrepresentation is broader and not limited solely to fraud or misrepresentations made by an individual or entity against the U.S. government.

While general USCIS guidance on inadmissibility concerning willfulness, intent, and materiality is relevant to determining whether an EB-5 petition, application, or benefit was predicated on or involves fraud or misrepresentation, the guidance below expands on that existing guidance to cover the additional situations covered by INA 203(b)(5)(O).^[15]

USCIS interprets the statutory terms, generally, in accordance with their plain language meanings and in each case as related to the petition, application, or benefit.

For fraud findings made under INA 203(b)(5)(O), USCIS generally considers a petition, application, or benefit to have been predicated on or involve fraud based on a finding that an individual or entity related to the petition, application, or benefit knowingly made a false representation of or knowingly concealed a material fact with intent, for example, to induce action or to deceive.^[16]

For findings of intentional material misrepresentation under INA 203(b)(5)(O), USCIS generally considers a petition, application or benefit to have been predicated on or involve intentional material misrepresentation based on a finding that an individual or entity related to the petition, application, or benefit made a false or misleading assertion about a material fact with the intent to deceive.^[17]

Deceit

USCIS generally considers a petition, application, or benefit to have been predicated on or involve deceit based on a finding that an individual or entity related to the petition, application, or benefit intentionally led another person to believe something that is not true.^[18]

Criminal Misuse

USCIS generally considers a petition, application, or benefit to have been predicated on or involve criminal misuse based on a finding that an individual or entity related to the petition, application, or benefit improperly used the EB-5 program or capital obtained through the EB-5 program in connection with or in furtherance of a crime.

In the context of the EB-5 program, criminal misuse is most likely to arise in the context of misuse of EB-5 capital in connection with or in furtherance of financial crime.^[19]

Examples of actions that may trigger findings under INA 203(b)(5)(O)

Types of fraud, deceit, intentional material misrepresentation, or criminal misuse that may arise with individual investor petitions; those associated with regional centers, new commercial enterprises, and job creating entities; attorneys; migration agents; preparers; and promoters may include but are not limited to the following actions:

The applicant, petitioner, or beneficiary engaged in financial fraud or financial crimes, including misappropriation of funds (Ponzi scheme, embezzlement, wire fraud, etc.);
The applicant or petitioner falsified claims of job creation, economic development, or both;
The applicant, petitioner, or beneficiary intentionally misrepresented the information provided or intentionally omitted required information;
The attorney, preparer, promoter, or migration agent intentionally misrepresented the EB-5 program to an immigrant investor, either current or future;
The attorney, preparer, promoter, or migration agent represented themselves as a registered broker but was not registered;
The applicant or petitioner falsified one or more responses to the bona fide question set under INA 203(b)(5)(H);
The applicant or petitioner falsified information about their background on a form (such as their credentials, education, employment), or presented altered or counterfeit documents;
The applicant, petitioner, or beneficiary misrepresented, or concealed the source of funds or the path of funds;
The petitioner presented derivatives that are not legal family members; or
The petitioner or derivative assumed an alternate identity to attain an immigration benefit.

Footnotes

[^ 1] USCIS generally follows the procedures at 8 CFR 103.2(b)(8)(iv) regarding requests for evidence and notices of intent to deny.

[^ 2] See INA 203(b)(5)(P)(i)(V).

[^ 3] While USCIS does not sanction a regional center based directly on pre-RIA violations or violations of other areas of the law, USCIS may still consider significant or recurring pre-RIA violations or violations of other areas of the law for the purpose of evaluating the severity of sanctionable post-RIA violations of applicable provisions of the INA.

[^ 4] For more information on good faith investors, see Chapter 3, Immigrant Petition Adjudication, Section E, Good Faith Investors following Program Noncompliance by a Regional Center, New Commercial Enterprise, or Job-Creating Entity [6 USCIS-PM G.3(E)].

[^ 5] USCIS understands that treatment of investor petitions associated with an approved Form I-956F for a suspended new commercial enterprise or job-creating entity differs from treatment of investor petitions associated with an approved Form I-956F for a suspended regional center; however, the scope of involvement of these entities with respect to any particular Form I-956F is different and the suspension of a regional center does not terminate its designation and may not necessarily impact the bases for investor eligibility of a previously approved Form I-956F. Conversely, the suspension of a new commercial enterprise or job-creating entity associated with a previously approved Form I-956F directly implicates bases for eligibility of associated investors since they derive benefits directly from the conduct of such entities. Consequently, USCIS generally continues to adjudicate Form I-526E petitions associated with a previously approved Form I-956F for a suspended regional center but reserves the right to hold adjudication of such petitions should the circumstances warrant (such as where the basis for regional center suspension implicates the investment offering or project associated with a previously approved Form I-956F).

[^ 6] SeeINA 203(b)(5)(H)(iv), INA 203(b)(5)(N)(iii), and INA 203(b)(5)(O)(ii).

[^ 7] See INA 203(b)(5)(G)(iii)(II) which, unlike INA 203(b)(5)(H)(iv), INA 203(b)(5)(N)(iii) and INA 203(b)(5)(O)(ii), authorizes debarment to end the participation of non-regional center persons in the EB-5 program while limiting usage of the term termination to sanctioning a regional center’s designation.

[^ 8] See INA 203(b)(5)(M).

[^ 9] See, for example, INA 203(b)(5)(G)(iii)(II)(cc), INA 203(b)(5)(H)(iv), INA 203(b)(5)(I)(iv), INA 203(b)(5)(K)(ii), INA 203(b)(5)(N)(iii), and INA 203(b)(5)(O)(ii).

[^ 10] See INA 203(b)(5)(N)-(O).

[^ 11] See INA 203(b)(5)(N)-(O).

[^ 12] For more information on how investors may retain eligibility following debarment or termination, see Chapter 3, Immigrant Petition Adjudication, Section E, Good Faith Investors following Program Noncompliance by a Regional Center, New Commercial Enterprise, or Job-Creating Entity [6 USCIS-PM G.3(E)].

[^ 13] For more information on how investors may retain eligibility following debarment or termination, see Chapter 3, Immigrant Petition Adjudication, Section E, Good Faith Investors following Program Noncompliance by a Regional Center, New Commercial Enterprise, or Job-Creating Entity [6 USCIS-PM G.3(E)].

[^ 14] See INA 203(b)(5)(N)-(O).

[^ 15] To the extent that USCIS makes a finding in accordance with INA 203(b)(5)(O) and a finding of fraud or willful misrepresentation under INA 212(a)(6)(C) that would impact an individual’s admissibility, USCIS annotates those findings separately.

[^ 16] See definition of “fraud,” Black’s Law Dictionary (11th ed. 2019).

[^ 17] See definition of “misrepresentation,” Black’s Law Dictionary (11th ed. 2019).

[^ 18] See definition of “deceit,” Black’s Law Dictionary (11th ed. 2019).

[^ 19] See definition of “misuse,” Black’s Law Dictionary (11th ed. 2019).

Resources

INA 201 - Worldwide level of immigration

INA 202 - Numerical limitations on individual foreign states

INA 203 - Allocation of immigrant visas

INA 203(b)(5), 8 CFR 204.6 (PDF) - Employment creation immigrants

INA 204(a)(1)(H) - Procedure for granting immigrant status

INA 204, 8 CFR 204 - Procedure for granting immigrant status

INA 216A, 8 CFR 216.6 - Conditional permanent resident status for certain alien entrepreneurs, spouses, and children

Pub. L. 117-103 (PDF) - Consolidated Appropriations Act of 2022 - Division BB - EB–5 Reform and Integrity Act of 2022

G-1055, Fee Schedule

G-28, Notice of Entry of Appearance as Attorney or Accredited Representative

I-290B, Notice of Appeal or Motion

I-485, Application to Register Permanent Residence or Adjust Status

I-526, Immigrant Petition by Standalone Investor

I-526E, Immigrant Petition by Regional Center Investor

I-956, Application for Regional Center Designation

I-956F, Application for Approval of an Investment in a Commercial Enterprise

I-956G, Regional Center Annual Statement

I-956H, Bona Fides of Persons Involved with Regional Center Program

How to Use the USCIS Policy Manual Website

Appendices

The content in this appendix reflects USCIS policy as it existed before the EB-5 Reform and Integrity Act of 2022, Division BB of the Consolidated Appropriations Act of 2022, Pub.L. 117-103 (PDF), 136 Stat. 49, 1070 (March 15, 2022) for reference. For current USCIS policy on regional centers, see Chapter 4, Regional Center Applications [6 USCIS-PM G.4], Chapter 5, Project Applications [6 USCIS-PM G.5], and Chapter 6, Direct and Third Party Promoters [6 USCIS-PM G.6].

The goal of the Regional Center Program is to stimulate economic growth in a specified geographic area. The regional center model can offer an immigrant investor already defined investment opportunities, thereby reducing the immigrant investor’s responsibility to identify acceptable investment vehicles. If the new commercial enterprise is located within the geographic area, and falls within the economic scope of the defined regional center, reasonable methodologies can be used to demonstrate indirect job creation.^[1] A regional center can be associated with one or more new commercial enterprises.

A regional center seeking to participate in the Regional Center Program must submit a proposal using the Application For Regional Center Under the Immigrant Investor Program (Form I-924).

USCIS may designate a regional center based on a general proposal for the promotion of economic growth, including increased export sales, improved regional productivity, job creation, or increased domestic capital investment. The statute further provides that a regional center shall have jurisdiction over a limited geographic area, which shall be described in the proposal and consistent with the purpose of concentrating pooled investment in defined economic zones.

In addition, the establishment of a regional center may be based on general predictions, contained in the proposal, concerning the kinds of commercial enterprises that will receive capital from immigrant investors, the jobs that will be created directly or indirectly as a result of such capital investments, and the other positive economic effects such capital investments will have on the area.^[2]

The regulations state that the proposal must:

Clearly describe how the regional center focuses on a geographical region of the United States and how it will promote economic growth through increased export sales, improved regional productivity, job creation, and increased domestic capital investment;
Provide in verifiable detail how jobs will be created directly or indirectly;
Provide a detailed statement regarding the amounts and sources of capital which have been already committed to the regional center;
Provide a description of the promotional efforts taken and planned by the sponsors of the regional center;
Include a detailed prediction^[3] how the regional center will have a positive impact on the regional or national economy based on factors such as increased household earnings, greater demand for business services, utilities, maintenance and repair, and construction both within and without the regional center; and
Be supported by economically or statistically valid forecasting tools, including, but not limited to, feasibility studies, analyses of foreign and domestic markets for the goods or services to be exported, or multiplier tables.^[4]

The level of verifiable detail required for a Form I-924 to be approved and provided deference may vary depending on the nature of the application filing.^[5]

A. Regional Center Application Proposals

The regional center proposal must include a management and operational plan to administer, oversee, and manage the proposed regional center, including but not limited to how the regional center:

Will be promoted to attract immigrant investors, including a description of the budget for promotional activities;
Will identify, assess, and evaluate proposed immigrant investor projects and enterprises;
Characterizes the structure of the investment capital it will sponsor; for example, whether the investment capital to be sought for job-creating companies will consist solely of immigrant investor capital or a combination of immigrant investor capital and domestic capital, and how the distribution of the investment capital will be structured (for example, loans to developers or venture capital); and
Will oversee all investment activities affiliated with, through, or under the sponsorship of the proposed regional center.

Geographic Area

An officer reviews the proposed geographic boundaries of a new regional center to determine if they are acceptable. USCIS considers geographic boundaries acceptable if the regional center applicant can establish by a preponderance of the evidence that the proposed economic activity will promote economic growth in the proposed area.^[6] The determination is fact-specific, and the law does not require any particular form of evidence, such as a county-by-county analysis.

In addition, a regional center’s geographic area must be limited, contiguous, and consistent with the purpose of concentrating pooled investment in defined economic zones.^[7] To demonstrate that the proposed geographic area is limited, the regional center applicant should submit evidence demonstrating the linkages between proposed economic activities within the proposed area based on different variables. Examples of variables to demonstrate linkages between economic activities can include but are not limited to:

Regional connectivity;
The labor pool and supply chain; and
Interdependence between projects.

Moreover, in assessing the likelihood that the proposed economic activity will promote economic growth in the proposed geographic area, an officer reviews the impact of the activity relative to relevant economic conditions. The size of the proposed area should be limited and consistent with the scope and scale of the proposed economic activity, as the regional center applicant is required to focus on a geographical region of the United States.^[8] The regional center applicant must present an economic analysis of its proposed economic activity in the proposed geographic area that is supported by economically or statistically valid forecasting tools.^[9] The Form I-924 instructions provide further information regarding the requirements of the economic analysis.

B. Types of Regional Center Projects

An actual project refers to a specific project proposal that is supported by a Matter of Ho (PDF) compliant business plan.^[10]

A hypothetical project refers to a project proposal that is not supported by a Matter of Ho (PDF) compliant business plan.

The term exemplar refers to a sample Immigrant Petition by Alien Investor (Form I-526), filed with Form I-924 for an actual project. This type of regional center proposal contains copies of the commercial enterprise’s organizational and transactional documents, which USCIS reviews to determine if they are in compliance with established eligibility requirements.

1. Hypothetical Projects

If the Form I-924 projects are hypothetical projects, general proposals and general predictions may be sufficient to determine that the proposed regional center will more likely than not promote economic growth, improved regional productivity, job creation, and increased domestic capital investment. A regional center applicant seeking review of a hypothetical project should clarify in the Form I-924 submission that the project is hypothetical. General proposals and predictions may include a description of the project parameters, such as:

Proposed project activities, industries, locations, and timelines;
A general market analysis of the proposed job creating activities and explanation regarding how the proposed project activities are likely to promote economic growth and create jobs; and
A description, along with supporting evidence, of the regional center principals’ relevant experience and expertise.

While hypothetical project submissions are sufficient for regional center designation, previous determinations based on hypothetical projects will not receive deference. Actual projects will receive a de novo officer review during subsequent filings (for example, through the adjudication of an amended Form I-924 application, including the actual project details or the first Form I-526 immigrant investor petition).

Organizational and transactional supporting documents are not required for a hypothetical project. If a regional center applicant desires a compliance review of organizational and transactional documents, the application must include an actual project with a Matter of Ho (PDF) compliant business plan and an exemplar immigrant investor petition.

2. Actual Projects

Applications for regional center designation based on actual projects may require more details than a hypothetical project to demonstrate that the proposal contains verifiable details and is supported by economically or statistically sound forecasting tools. A regional center applicant seeking review of an actual project should clarify in the Form I-924 submission that the project is actual.

Actual projects require a Matter of Ho (PDF) compliant comprehensive business plan that provides verifiable detail on how jobs will be created. Absent fraud, willful misrepresentation, or a legal deficiency,^[11] USCIS defers to prior determinations based on actual projects when evaluating subsequent filings under the project involving the same material facts and issues.

Organizational and transactional documents for the new commercial enterprise are not required. If a regional center applicant desires review of organizational and transactional documents for program compliance, the regional center application must be accompanied by an exemplar Form I-526 immigrant investor petition.

If regional center applicants opt not to file a Form I-924 amendment, the investor should identify his or her Form I-526 immigrant investor petition as an actual project being presented for the first time. Additionally, the immigrant petition should contain an affirmative statement signed by a regional center principal confirming that the regional center is aware of the specific project being presented for the first time as part of the immigrant investor petition.

In cases where the regional center application is filed based on actual projects that do not contain sufficient verifiable detail, USCIS may approve the projects as hypothetical projects if they contain the requisite general proposals and predictions. The projects approved as hypotheticals, however, do not receive deference in subsequent filings.

In cases where some projects are approvable as actual projects, and others are not approvable or only approvable as hypothetical projects, the approval notice should identify which projects have been approved as actual projects and will be accorded deference. The approval notice should also identify projects that have been approved as hypothetical projects but will not be accorded deference.

3. Exemplar Filings

Regional center applications, based on actual projects, including a Form I-526 immigrant investor exemplar petition, require more details than a hypothetical or actual project submitted without an exemplar. A regional center applicant seeking review of an exemplar should state that the project is an actual project with a Form I-526 exemplar.

Exemplar filings require a Matter of Ho (PDF) compliant comprehensive business plan that provides verifiable detail on how jobs will be created, as well as organizational and transactional documents for the new commercial enterprise.

Absent fraud, willful misrepresentation, or a legal deficiency, officer determinations based on exemplar filings are accorded deference in subsequent filings under the project with the same material facts and issues.

While an amended Form I-924 is not required to perfect a hypothetical project once the actual project details are available, some applicants may choose to file an amended Form I-924 application with a Form I-526 exemplar to obtain a favorable determination. These exemplar filings are accorded deference in subsequent related filings, absent material change, fraud, willful misrepresentation, or a legally deficient determination.

C. Regional Center Annual Reporting

Designated regional centers must file a Supplement to Form I-924 (Form I-924A) annually that demonstrates continued eligibility for designation as a regional center in the EB-5 Program.^[12] The regional center must file the form within 90 days of the end of the fiscal year (between October 1 and December 29). The Form I-924A instructions specifically list required information that must be submitted.^[13]

If the regional center fails to file the required annual report, USCIS issues a Notice of Intent to Terminate (NOIT) to the regional center for failing to provide the required information. This may ultimately result in the termination of the regional center’s designation if the regional center fails to respond or does not file a response which adequately demonstrates continued eligibility.

D. Regional Center Amendments

Because businesses’ strategies constantly evolve, with new opportunities identified and existing plans improved, a regional center may amend a previously approved designation. The Form I-924 instructions provide information regarding the submission of regional center amendment requests.^[14]

To improve processing efficiencies and predictability in subsequent filings, many regional centers may seek to amend the Form I-924 approval to reflect changes in economic analysis and job creation estimates. Such amendments, however, are not required in order for individual investors to proceed with filing the immigrant petitions or petitions to remove conditions on residence based on the additional jobs created, or to be created, in additional industries.

Formal amendments to an approved regional center’s designation are not required when a regional center changes its industries of focus, business plans, or economic methodologies; however, a regional center may find it advantageous to seek USCIS approval of such changes before they are adjudicated in individual immigrant investor petitions.

Requests to Change Geographic Area

When a regional center requests to expand its geographic area, the proposed geographic area must be limited, contiguous, and consistent with the purpose of concentrating pooled investment in defined economic zones.^[15]

Any requests for geographic area expansion made on or after February 22, 2017 are adjudicated under the current guidance in the Form I-924 instructions which requires that a Form I-924 amendment must be filed, and approved, to expand the regional center’s geographic area. The Form I-924 amendment must be approved before an I-526 petitioner may demonstrate eligibility at the time of filing his or her petition based on an investment in the expanded area.

If the regional center’s geographic area expansion request was submitted either through a Form I-924 amendment or Form I-526 petition filed prior to February 22, 2017, and the request is ultimately approved, USCIS will continue to adjudicate additional Form I-526 petitions associated with investments in that area under prior policy guidance issued on May 30, 2013.^[16] That policy did not require a formal amendment to expand a regional center’s geographic area, and permitted concurrent filing of the Form I-526 prior to approval of the geographic area amendment.

E. Termination of a Regional Center Designation

USCIS issues a NOIT if:

USCIS determines that a regional center no longer serves the purpose of promoting economic growth, including increased export sales, improved regional productivity, job creation, and increased domestic capital investment; or
The regional center fails to submit required information to USCIS.^[17]

The NOIT will provide the grounds for termination and provide at least 30 days from receipt of the NOIT for the regional center to respond to the allegations in the NOIT. The regional center may offer evidence to contest the allegations in the NOIT. If the regional center overcomes the allegations in the NOIT, USCIS issues a Notice of Reaffirmation that affirms the regional center’s designation.

If the regional center fails to overcome the allegations in the NOIT, USCIS terminates the regional center’s participation in the Regional Center Program. In this case, USCIS notifies the regional center of the termination, the reasons for termination, and the right to file a motion, appeal, or both. The regional center may appeal the decision to USCIS’ Administrative Appeals Office within 30 days after service of notice (33 days, if the notice was mailed).^[18]

Footnotes

[^ 1] For a definition of indirect jobs, see Chapter 2, Eligibility Requirements, Section D, Creation of Jobs, Subsection 4, Measuring Job Creation [6 USCIS-PM G.2(D)(4)].

[^ 2] See Section 610(a) of the Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations Act, 1993, Pub. L. 102-395, 106 Stat. 1828, 1874 (October 6, 1992), as amended.

[^ 3] An applicant can submit a general prediction which addresses the prospective impact of the capital investment projects sponsored by the regional center, regionally or nationally. See Form I-924 instructions.

[^ 4] See 8 CFR 204.6(m)(3).

[^ 5] For more information about the types of regional center projects, see Section B, Types of Regional Center Projects [6 USCIS-PM G.3(B)].

[^ 6] See Section 610(a) of the Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations Act of 1993, Pub. L. 102-395, 106 Stat. 1828, 1874 (October 6, 1992), as amended. See 8 CFR 204.6(m)(3)(i) (requiring a clear description of how the regional center focuses on a geographical region of the United States and how it will promote economic growth).

[^ 7] See Section 610(a) of the Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations Act of 1993, Pub. L. 102-395, 106 Stat. 1828, 1874 (October 6, 1992), as amended.

[^ 8] See Section 610(a) of the Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations Act of 1993, Pub. L. 102-395, 106 Stat. 1828, 1874 (October 6, 1992), as amended. See 8 CFR 204.6(m)(3)(i).

[^ 9] See 8 CFR 204.6(m)(3).

[^ 10] See Chapter 2, Eligibility Requirements, Section B, Comprehensive Business Plan [6 USCIS-PM G.2(B)].

[^ 11] Legal deficiency includes objective mistakes of law or fact made as part of the USCIS adjudication.

[^ 12] See 8 CFR 204.6(m)(6).

[^ 13] See Form I-924A instructions.

[^ 14] See Form I-924 instructions.

[^ 15] For a discussion of an officer’s review of a regional center’s proposed geographic area, see Section A, Regional Center Application Proposals [6 USCIS-PM G.3(A)].

[^ 16] See EB-5 Adjudication Policy Memo, PM-602-0083, issued May 30, 2013.

[^ 17] See 8 CFR 204.6(m)(6).

[^ 18] See 8 CFR 103.3. See 8 CFR 204.6(m)(6).

Updates

U.S. Citizenship and Immigration Services (USCIS) is issuing policy guidance in the USCIS Policy Manual to address the new provisions added to the Immigration and Nationality Act (INA) by the EB-5 Reform and Integrity Act of 2022 (RIA) relating to the consequences to regional centers, new commercial enterprises, job creating entities, and investors for noncompliance in the EB-5 program.

Affected Sections

6 USCIS-PM G.3 - Chapter 3 - Immigrant Petition Adjudication

6 USCIS-PM G.4 - Chapter 4 - Regional Center Applications

6 USCIS-PM G.5 - Chapter 5 - Project Applications

6 USCIS-PM G.8 - Chapter 8 - Sanctions and Discretionary Determinations

U.S. Citizenship and Immigration Services (USCIS) is updating policy guidance in the USCIS Policy Manual to continue to incorporate statutory reforms of the Regional Center Program as they relate to regional center designation and other requirements for immigrant investors.

Affected Sections

6 USCIS-PM G - Part G - Investors

This technical update replaces all instances of the term “alien” with “noncitizen” or other appropriate terms throughout the Policy Manual where possible, as used to refer to a person who meets the definition provided in INA 101(a)(3) [“any person not a citizen or national of the United States”].

Affected Sections

1 USCIS-PM - Volume 1 - General Policies and Procedures

2 USCIS-PM - Volume 2 - Nonimmigrants

6 USCIS-PM - Volume 6 - Immigrants

7 USCIS-PM - Volume 7 - Adjustment of Status

8 USCIS-PM - Volume 8 - Admissibility

9 USCIS-PM - Volume 9 - Waivers and Other Forms of Relief

10 USCIS-PM - Volume 10 - Employment Authorization

11 USCIS-PM - Volume 11 - Travel and Identity Documents

12 USCIS-PM - Volume 12 - Citizenship and Naturalization

U.S. Citizenship and Immigration Services (USCIS) is updating and incorporating relevant Adjudicator’s Field Manual (AFM) content into the USCIS Policy Manual. As that process is ongoing, USCIS has moved any remaining AFM content to its corresponding USCIS Policy Manual Part, in PDF format, until relevant AFM content has been properly incorporated into the USCIS Policy Manual. To the extent that a provision in the USCIS Policy Manual conflicts with remaining AFM content or Policy Memoranda, the updated information in the USCIS Policy Manual prevails. To find remaining AFM content, see the crosswalk between the AFM and the Policy Manual.

Affected Sections

1 USCIS-PM - Volume 1 - General Policies and Procedures

2 USCIS-PM - Volume 2 - Nonimmigrants

3 USCIS-PM - Volume 3 - Humanitarian Protection and Parole

4 USCIS-PM - Volume 4 - Refugees and Asylees

5 USCIS-PM - Volume 5 - Adoptions

6 USCIS-PM - Volume 6 - Immigrants

7 USCIS-PM - Volume 7 - Adjustment of Status

8 USCIS-PM - Volume 8 - Admissibility

9 USCIS-PM - Volume 9 - Waivers and Other Forms of Relief

11 USCIS-PM - Volume 11 - Travel and Identity Documents

12 USCIS-PM - Volume 12 - Citizenship and Naturalization

This technical update replaces all instances of the term “foreign national” with “alien” throughout the Policy Manual as used to refer to a person who meets the definition provided in INA 101(a)(3) [“any person not a citizen or national of the United States”].

Affected Sections

1 USCIS-PM - Volume 1 - General Policies and Procedures

2 USCIS-PM - Volume 2 - Nonimmigrants

6 USCIS-PM - Volume 6 - Immigrants

7 USCIS-PM - Volume 7 - Adjustment of Status

8 USCIS-PM - Volume 8 - Admissibility

9 USCIS-PM - Volume 9 - Waivers and Other Forms of Relief

10 USCIS-PM - Volume 10 - Employment Authorization

11 USCIS-PM - Volume 11 - Travel and Identity Documents

12 USCIS-PM - Volume 12 - Citizenship and Naturalization

U.S. Citizenship and Immigration Services (USCIS) is updating guidance in the USCIS Policy Manual regarding a regional center’s geographic area, requests to expand the geographic area, and how such requests impact the filing of Form I-526, Immigrant Petition by Alien Entrepreneur.

Affected Sections

6 USCIS-PM G - Part G - Investors

U.S. Citizenship and Immigration Services (USCIS) is updating the USCIS Policy Manual to provide further guidance regarding the job creation and capital at risk requirements for Form I-526, Immigrant Petition by Alien Entrepreneur, and Form I-829, Petition by Entrepreneur to Remove Conditions on Permanent Resident Status.

Affected Sections

6 USCIS-PM G - Part G - Investors

U.S. Citizenship and Immigration Services (USCIS) is issuing policy guidance regarding the eligibility requirements for regional centers and immigrant investors.

Affected Sections

6 USCIS-PM G - Part G - Investors

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