HARRISLAW REPRESENTS COMMERCIAL DEVELOPERS & BUSINESS OWNERS IN ORDER TO UTILIZE THE EB-5 IMMIGRANT INVESTOR PROGRAM FOR THEIR BUSINESSES

Our board certified immigration expert has succeeded in gaining USCIS approval for his business clients that seek to raise EB-5 capital. Michael Harris has represented EB-5 Regional Centers who are seeking to raise between as little as $8 million in capital, to $250 million for a variety of industry projects.

HOW TO USE THE EB-5 PROGRAM FOR YOUR PROJECT

A business developer has two options when seeking to use the EB-5 Immigrant Investor Program to develop and fund its projects:

(1) a Direct EB-5 Investment, or

(2) an investment funded under the EB-5 Regional Center Program.

Deciding which option to use as part of your capital stack has various pros and cons. Both can allow you to offer a foreign investor the ability to obtain a green card in exchange for their capital contribution to your business. The principal difference between the two options comes down to the methodologies used in and the time-constraints impacted by job creation. This is because only an EB-5 Regional Center is permitted to create jobs indirectly based on the expenditures and revenues of a project, as well as the induced spending on the local economy, as predicted by an economic impact study. If a project is not affiliated with an EB-5 Regional Center, then it may still benefit from EB-5 capital—but it may only rely on direct jobs.

WHAT IS AN EB-5 REGIONAL CENTER?

A “Regional Center” is a company that has been approved by the U.S. Citizenship and Immigration Services (USCIS) to focus on a specific geographical area within the United States by seeking to promote economic growth through improved regional productivity, creation of new jobs, and increased domestic capital investment. A project which is affiliated with an Regional Center can utilize the direct jobs created by the commercial enterprise, as well as the indirect and induced jobs created according to a reasonable economic impact study’s prediction. Further, the project has the option of only relying on the indirect jobs created, which can be a tremendous benefit to large commercial enterprises by not having to rely on direct jobs (and the large volume of employment and tax records needed).

A capital investment made under the EB-5 Regional Center is funded through a commercial enterprise located within a “regional center,” which is defined as “any economic unit, public or private, which is involved with the promotion of economic growth, including increased export sales, improved regional productivity, job creation, or increased domestic capital investment.” To be able to use the benefits of an EB-5 Regional Center, an applicant must first seek USCIS approval by submitting a proposal showing how it plans to focus on a geographical region and industry or industries within the United States and achieve the required growth by the means specified. The proposal must show “in verifiable detail how jobs will be created,” as well as the amount and source of capital committed and the promotional efforts made and planned.

In summary, the USCIS will require a Regional Center proposal to show the kinds of commercial enterprises that will receive capital from investor; the jobs that will be created directly or indirectly as a result of the investment of capital; the other positive economic impacts that will result from the investment of capital; whether the Regional Center’s project is located within a government-defined Targeted Area of Employment or TEA (e.g. a U.S. Census-defined metropolitan statistical area (MSA) where the unemployment is at least 150% of the national average, or in a “rural” area that is outside an MSA and has a population of less than 20,000 people); and the management plans for the Regional Center (once approved and receiving EB-5 Investor capital) to oversee its annual reporting requirements.

To prepare an EB-5 compliant Regional Center proposal, the immigration filing will generally require project documentation (discussed below), an economic impact study, a comprehensive business plan, and private placement contracts concerning an actual potential project (hypothetical projects will not require a private placement offering initially). Before commencing a Regional Center proposal, it is highly recommended that a business developer conduct due diligence to assure the feasibility of their project. Other levels of due diligence are also advised, such as working with immigration counsel and an economist to study whether the project will lead to enough direct, indirect and/or induced jobs, as well as evaluating whether the project will be located in a TEA.

HOW IS A REGIONAL CENTER PROJECT DIFFERENT THAN AN EB-5 DIRECT PROJECT?

The requirements for an EB-5 Direct Project are very similar to a project that is affiliated with a Regional Center. The following items distinguish an EB-5 Direct Project from a Regional Center project:

1. Economic Impact Study. A direct project does not require an economic impact study as only direct jobs are allowed. The predicted job creation must be articulated in verifiable detail in a comprehensive business plan. When an investor seeks to petition the USCIS to remove the conditions on his or her residence, proof of the direct job creation will be documented with employment and tax records, as well as other documentation showing that the EB-5 capital was spent on the EB-5 project as planned.

2. USCIS Pre-Approval. A direct project does not have to seek project pre-approval from USCIS. This may be beneficial for project owners who do not wish to wait the many months necessary for USCIS to adjudicate a new Regional Center. USCIS processing times for new Regional Center applications have varied between more than 4 months to 15 months — and this is before an investor’s petition based on a Regional Center project can be filed. This additional delay and expense may not always be in the best interest of a project owner’s desired timeline to commence work. Note that after a regional center has been approved, subsequent projects that are within the previously-approved geographic territory do not require pre-approval by USCIS. Therefore, a pre-approval can be applied for through additional filings with USCIS, if desired in order to confirm eligibility and potential investor confidence.

3. When Can Initial Investors File? A direct project can have its investors file their petitions immediately upon having a set of EB-5 compliant materials (e.g. a business plan, corporate documentation, and proof of the actual project’s imminent commencement). A Regional Center project is able to do the same for new projects only after being sponsored by an approved Regional Center.

4. Rent Payments to a Regional Center. A direct project owner is not required to pay “rent” or fees to a Regional Center to obtain EB-5 capital. (Note that this is not true for project owners who own their Regional Center.) Regional Centers tend to charge a fee for participants to utilize their designation. This may range from a combination including an amount per investor, a signup fee, a percentage of the EB-5 funds borrowed through the regional center, and even a part of the project owner’s equity stake in the enterprise.

5. USCIS Annual Report. A direct project owner is not currently required to submit an annual report on all of its EB-5 activities each year to the USCIS. Regional center owners are required to file an annual report prior to the end of the calendar year. Failure to file an annual report may lead to termination or revocation of a Regional Center’s designation.

6. USCIS Filing Fee. A direct project owner does not have to pay a filing fee to have his project approved by USCIS. Each investor filing under the project will pay their own filing fee. A project seeking to fund through an existing USCIS-approved Regional Center will not need to pay a USCIS filing fee; the filing fee is only required when the Regional Center seeks its designation, when a project wishes to have an exemplar approval, or if a Regional Center needs to file an amendment with the USCIS.

7. Investment Funds May Be Pooled. Both a Direct EB-5 project and Regional Center project may pool funds from a group of investors.

8. Portfolio Funds Allowed. Both types of projects may allow investors to fund investments through portfolios, however a direct project will require a holding company to wholly own the underlying subsidiaries where job creation occurs.

9. Minimum Investment of $900,000. Both types of projects allow for investments to be made in TEAs at a $900,000 amount per investor.

10. Business Plan Required. Both types of projects must have a comprehensive business plan.

11. Private Placement Offering Required for Pooled Funds. Both types of projects, if pooling funds together, should have a set of proper U.S. and State Securities Law compliant offering materials (e.g. Private Placement Memorandum, Limited Partnership Agreement, Subscription Agreement, Escrow Agreement, etc.).

GENERAL PROJECT REQUIREMENTS

In terms of an EB-5 Regional Center application, when it has been approved by USCIS an investor applicant seeking EB-5 status under the program may make the qualifying investment (i.e., $900,000 or $1.8 million) within an approved Regional Center. The requirement of creating at least 10 new full-time jobs for qualified U.S. workers is met by a showing that as a result of the new enterprise, such jobs will be created directly or indirectly. It is also important to note that under recent USCIS guidance, an EB-5 Regional Center project can seek to utilize construction jobs as direct jobs only if they are expected to last at least two years. As well, the project may also choose to rely solely on a verifiable and reasonable economic job creation methodology that shows that the necessary project expenditures or infusion into the local economy will result in the minimum amount of indirect or induced jobs.

In today’s marketplace for commercial loans and investment capital when traditional sources of funding may have become increasingly unavailable for industrial development, real estate, construction, and venture-capital-seeking businesses, the EB-5 Immigrant Investor Program has attracted great interest. Today, more businesses are choosing to seek EB-5 capital, whether through a Direct EB-5 project, by forming a Regional Center, or by having their project licensed by an existing Regional Center, in order to seek and attract the many thousands of foreign investors willing to invest at least $900,000 for the opportunity to secure a green card. At HarrisLaw, we have represented EB-5 Regional Center Projects which have sought EB-5 capital raises ranging from $10 million to $250 million. We also have represented smaller Direct EB-5 projects where the pooled funds sought were as little as $500,000. Our commitment to ensuring our clients success in the EB-5 program is dedicated, as shown through our membership in organizations such as IIUSA, the nation’s largest EB-5 industry trade association, the American Immigration Lawyers Association (AILA), as well as through Michael A. Harris’s certification by the Florida Bar as a specialist in Immigration and Nationality Law.

If you are interested, please contact us for more information and our office will be happy to discuss the EB-5 developer program with you.

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