USCIS Has Not Determined What Would Occur to Pre-RIA EB-5 Projects and Regional Centers that Do Not Submit an I-956

Recently released minutes from USCIS's latest quarterly meeting with the Behring case plaintiffs show that the agency still has not decided whether or not pre-RIA projects are subject to RIA obligations, including fund management and audits. Additionally, the fate of regional centers that do not submit Form I-956, Application for Regional Center Designation, remains undecided by USCIS. In particular, it has not been decided whether or not such regional centers would be shut down or required to submit Form I-956H (Bona Fides) and yearly accounts.

The six regional centers that sued the government over the deauthorization of the Regional Center Program and USCIS reached a settlement in which the plaintiffs agreed to meet with the agency for two hours once a quarter for at least two years to discuss the settlement's implementation and whether any changes are necessary.

There are some answers and even more questions for certain regional centers and the investors affiliated with them, as revealed in the newly disclosed minutes from the meeting between the two sides on October 14, 2022.

Is the RIA Applicable to Older Regional Centers?

The first big question is whether the new rules apply to projects for regional centers that started before the RIA. As the agency points out:

“USCIS has not yet decided whether it will take the position that RIA requirements, such as fund administrators and audits, apply to pre-RIA projects. USCIS will consider stakeholders’ written position paper on this issue by existing channels of communication and in compliance with Section 107 of the RIA.”

Keeping up with the new rules is a significant investment of time and resources. It will be of great interest to pre-RIA regional centers to find out what the agency will need from them in investment projects.

Is It Possible to Close Regional Centers that Don't Submit an I-956?

What will happen to regional centers that do not submit an I-956 is another essential concern not addressed. The industry has been anticipating, or perhaps hoping, that regional centers would not need to submit this application if they are not supporting new projects or new investors in light of the new restrictions.

This interpretation is based on language from the settlement: “Previously Approved Regional Centers sponsoring new projects or investors under the Integrity Act will comply with all the requirements of the Integrity Act.”

The I-956 application has a filing cost of $17,795, which may dissuade certain older regional centers from applying.

However, the last quarterly meeting throws up the possibility of even greater unpredictability. The minutes, written from what seems to be the plaintiffs' point of view, address this unresolved matter as follows: “USCIS has not determined what will happen to regional centers that choose not to file Form I-956. Specifically, it has not decided whether such regional centers will be terminated, whether they will have to file I-956H, whether they will have to file annual statements, or whether any of the RIA requirements apply to them. They will accept our written position paper on these issues in accordance with existing channels of communication and in compliance with Section 107 of the RIA.”

Writer of EB-5 investment proposals Suzanne Lazicki discusses the potentially dire outcomes for EB-5 investors in regional centers that may be shut down for failing to file an I-956: “Then past investors in those RCs will find their immigration status in jeopardy.”

She brings up the fact that investors in terminated regional centers have 180 days to reinvest or lose their eligibility unless their new business is affiliated with a regional center in good standing.

Lazicki claims that the elimination of regional centers will have an effect on EB-5 program investors at all levels, including those with conditional permanent status.

For many backers, the answer to the issue of whether or not USCIS would terminate a regional center for failure to file Form I-956 is critical. Until the Immigration Service reaches a judgment, the nerves of any investors connected with a regional center who choose to take a chance and not submit an I-956 will be on edge.

I-956 Form Post-Acceptance Amendments

The meeting minutes also covered several more topics. One of the terms of the lawsuit settlement is that any regional center that previously submitted an I-956 may make any changes allowed under the form. Of note, “with respect to geography, USCIS will accept an amendment to the I-956 to expand the geographic scope to larger than what was originally requested.”

Can an Annual Statement for a Regional Center Be Postponed Until the End of 2023?

Since stakeholders have informed the government that the annual statement is redundant with much of the I-956 that must be submitted in December 2022, the agency has also indicated it would "consider advice" on whether the filing of an I-956G (regional center annual statement) may be postponed until December 2023.

The minutes also explain a couple of other small things. First, the investor regional center petition I-526E doesn't need to include any project-related documents. Next, the organization will investigate the lockbox's denial of concurrent I-485 files and, hopefully, remedy any errors that have been made.

Note: This website's content is meant to be general; it does not constitute legal or financial advice. Only a licensed expert with a total understanding of all the information and circumstances of your specific situation can provide legal or financial advice. Before enrolling in the EB-5 program, you should contact a visa attorney with legal, immigration, and financial knowledge.