As announced in March 2017, USCIS will begin conducting regional center compliance audits. According to the USCIS website, “compliance audits are an additional way to enhance EB-5 program integrity and verify information in regional center applications and annual certifications.” So far, the compliance audit is voluntary, not mandatory.
The USCIS audit team will:
- Review regional center applications, certifications, associated records;
- Review public records and information on the regional center;
- Verify the information, including supporting documents, submitted with the application(s) and in the annual certification(s);
- Conduct site inspections;
- Review and analyze documents; and
- Interview personnel to confirm the information provided with the application(s) and annual certification(s).
Compliance audits may consist of the predictable and the unpredictable. The predictable parts will be keyed to a review and interview relating to I-924s and I-924As already submitted by regional centers.
The unpredictable parts can be predicated on outside information from “government systems” and other extrinsic information. The problem here would be lack of transparency, as regional centers may have no advance access to those extrinsic records to verify accuracy or relevance.
Importantly, updates to filings may be requested. The USCIS website indicates that to prepare for the audit, the regional center should have “any updates” (emphasis added) to the information originally submitted with any application or certification.
An audit report will be prepared to be made part of the regional center record. But it is unclear whether regional centers have the opportunity to review the audit report before it is finalized. Regional centers should always request to see an advance copy of the draft audit report, so that it may make any corrections or clarifications as necessary.
Here are the key takeaways for regional centers:
- Be prepared for a compliance audit. Maintain complete records of all filings, supporting evidence, and updates keyed to the USCIS record. USCIS will expect regional centers to “immediately provide any readily available documents and information”. Records should be maintained for ready production on short or no notice. While it is the author understands that USCIS may give some notice, there is no mention of notice in the public announcement.
- Be aware that USCIS may also research outside information. USCIS will research and reference information that it deems relevant to assessing regional center designation maintenance. This may include public and nonpublic information about the project, involved individuals, and regional center personnel.
- Be aware that an audit report will be a part of the regional center record. The auditor training, content of audit reports, and their ultimate use are yet undetermined.
- Prepare personnel. The announcement does not limit interviewing to regional center principals. Accordingly, all regional center staff should be prepared to answer basic question about regional center operations and principals. They should also know to whom they should direct USCIS auditors for organizational or project-related questions they cannot answer.
USCIS has posted information about the EB-5 Regional Center Compliance Audit Program at https://www.uscis.gov/working-united-states/permanent-workers/employment-based-immigration-fifth-preference-eb-5/eb-5-regional-center-compliance-audits.
See the recent Miller Mayer article posted on https://www.natlawreview.com/article/uscis-announces-launch-eb-5-regional-center-compliance-audit-program.
Compliance Audit Preparation is a compliance service module on the Miller Mayer EB-5 Gateway platform. To request more information or to engage Miller Mayer for Compliance Audit Preparation, contact your Miller Mayer attorney or email@example.com.
About Miller Mayer EB-5 Gateway: Miller Mayer EB-5 Gateway is a suite of services designed specifically for U.S. projects to maintain compliance under new USCIS audit policies and to prepare for EB-5 legislation to come. Compliance modules, including one for EB-5 Site Visits, enable projects to customize their own level of support. See millermayer.com/gateway for more info or contact firstname.lastname@example.org.