The annual I-924A filing season is upon us. Why is this of critical importance to all EB-5 stakeholders? Because failure to file a timely Form I-924A is cause for USCIS to issue a notice of intent to terminate (NOIT) against the regional center. Under the current USCIS policy, if a regional center is terminated before EB-5 investors enter conditional permanent residency, the EB-5 investors’ immigration benefits can be revoked or denied.
Timely filing Form I-924A is a straight-forward way to avoid a NOIT. The other prong for regional center designation maintenance – continuing to promote economic growth – is a more nebulous standard and problematic for that.[1] But a timely I-924A filing? That should be the prong on which regional centers can confidently check the box, especially given the lead time from the end of the fiscal year on October 1, 2020, to the due date on December 29, 2020.
USCIS recently updated Form I-924A, but unlike last year when USCIS made the new I-924A form effective weeks into the filing season, the new form will be required after the FY2020 deadline starting January 5, 2021.
Form I-924A requires gathering data covering the reporting period. The reporting period is typically the just-ended fiscal year. For the filing due December 29, 2020, for example, the reporting fiscal year is FY 2020 covering October 1, 2019 to September 30, 2020. Some regional centers may need to file for “catch up years,” in which case, the reporting period must be specified on the Form. The watchword for the Form I-924A is consistency. For example, if the reporting year is just the prior fiscal year, the investment, job creation, and petition count data should be provided for just the prior fiscal year.
Supporting evidence should be retained for any requests for information (RFIs) or regional center compliance reviews. It may be appropriate to report information not specifically requested in certain instances. For example, if there is an adjustment to the business plan filed with investor I-526 petitions, the Form I-924A filing may be an appropriate venue for reporting such an adjustment. Any adjustments to the business plan should be carefully considered with competent EB-5 counsel before any discussion is committed to the regional center or investor record.
Principal attorney Carolyn Lee has been advising regional centers since USCIS first introduced the Form I-924A and has commented on various iterations of the Form I-924A in her capacity as member and Chair of the American Immigration Lawyers (AILA) National EB-5 Committee. Carolyn Lee PLLC advises regional centers and developers in EB-5 compliance. Contact CLP for your FY 2020 Form I-924A review.
[1] This nebulous standard sits quietly on the books until launched against a target regional center. I have logged many words protesting the hazards of this open standard to good faith EB-5 stakeholders.
