Here are my notes from the EB-5 panel discussion on July 3 at the annual conference of the American Immigration Lawyers Association in National Harbor, Maryland.
Choosing a regional center
I get a call. Caller says, "Boyd, I have a client who is not truly a high-wealth individual, but he tells me he can qualify as an accredited investor, and he has almost gathered all of the $500,000 he will need to invest in a TEA (that is, a targeted employment area) or a rural area? What have you got?"
Wait a second now, I say. Hold on. First you've got to help your client decide whether he wants to be in the regular EB-5 Program, which doesn't involve a regional center or indirect job creation. In that case your client would invest the $500,000 in a "new commercial enterprise," which means established after November 29, 1990, or a troubled business, or expansion of an existing business, or reorganization of an existing business so that a new entity results. And he would have to create or preserve 10 direct jobs within two years of being admitted to the United States as a conditional resident or adjusting status. He would also have to prove that he was involved in the day-to-day operations of the business. And he would have to invest in a TEA.
If your client wants to select an investment project through a regional center, she needs to understand that the main feature is the indirect and induced job creation. This feature, through the use of computer-based economic impact methodologies such as RIMSII, IMPLAN, REMI and ReDyne, allows the regional center to show the creation of indirect and induced jobs. Because of Congress's specific endorsement of limited partnerships, most active regional centers use them as the investment vehicle. As long as your client discharges his duties, responsibilities, and obligations (which are not many) under the Uniform Limited Partnership Act, he's fine.
The attorney's role is to do due diligence and represent his or her client zealously. This means it's not the lawyer's job to steer the client to a particular investment or to a particular regional center. There are a number of good regional centers out there committed to due diligence themselves, transparency, and conservative adherence to time-tested approaches to EB-5 investment projects. If they are out there, you will find them and grill them about these issues. There are good stockbrokers and financial analysts who should be consulted about these securities. There are also a few regional center experts who have made it their business to learn as much as possible about active regional centers around the nation.
Regional Center Approval vs. Project Approval
Some regional center applicants use the approach of filing real business plans and real securities offerings and are essentially investment project -centric. Other applicants use exemplar investment projects or "hypothetical" investment projects in order to show what the regional center would do if approved by USCIS. Recently I have seen a number of puzzling RFEs that request alarming amounts of specific information about both real and exemplar investment projects, indicating that certain USCIS officers are conflating "project" and "regional center". And questions about indirect and induced job creation are stated in such a way that the California Service Center officers are scaring me.
They do not appear to know how this is done, which mirrors the most recent financial crisis on Wall Street, when few knew what collateralized debt obligations or credit default swaps were.
From the 21st Century Department of Justice Appropriations Authorization Act, dated Nov. 2, 2002
"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. 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 aliens, 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."
With the release of the December 11, 2009, Neufeld memo addressing a number of controversies surrounding the EB-5 Program and the Service's apparent hostitility toward it, we learned that there was finally a mechanism for pre-approval of EB-5 investment projects, but it will be -- at least for the time being -- limited to regional center projects.
Different Business Models
Loan or debt, equity, venture capital fund, real estate investment trust, and what was a new model in 2007 that has since been replicated, an EB-5 compliance consulting services company. Some regional centers are project-centric, meaning that all they're doing is a resort hotel, or warehouses, or a six-block area in Chinatown.
Loan or Debt
This seems to be the preferred model of regional centers because it can be more easily structured to meet the needs of the investors and the requirements of the EB-5 Program. When paired with a limited partnership business form -- which was specifically authorized by Congress in the 2002 amendments to the EB-5 Program -- I think this structure is an unbeatable combination. As long as the investors discharge their duties, responsibilities and obligations under the Uniform Limited Partnership Act, USCIS may not challenge this model as a "passive" investment.
Which is to take nothing away from the equity model. Certainly, if so structured, an investor could take an equity interest in a regional center investment project, including stock, preferred or common, or another type of equity interest, and receive dividends or other distributions over the life of the equity investment. I am concerned whether discharging one's duties as a shareholder, however, is sufficiently active to remove this type of investment from the "passive" category.
Venture Capital Fund
Several prominent regional centers are structured as venture capital funds. The fund will typically invest in one or more -- typically more -- projects. A limited partnership can produce documents for investors showing where the money came from, where the money went, and how many jobs were created in the job-creating enterprise. I think the way a venture capital fund does that -- particularly if it spreads investors' capital among a number of projects -- builds complexity into an already complicated process that will probably give USCIS fits at the I-829 petition stage.
Real Estate Investment Trust
A REIT is another model that can work. A major concern is how to defeat or challenge a USCIS argument that a REIT is a purely passive investment. I can imagine that a creative REIT might create steering and investment advisory committees and keep careful minutes of meetings and votes to build some activity into this model.
EB-5 Compliance Consulting Services Company
USCIS had not seen this innovation in a regional center application before I submitted it in late 2006. At that time, because I wanted a statewide regional center, it didn't make sense to limit the regional center to one investment project or one industry or economic sector. This model contemplates a variety of investment projects and project developers through one regional center. It serves as a facilitator between project developers on one hand and investors' and their representatives on the other.
Structuring the Investment
The investor may encounter a problem if she accepts a return on the investment during the two-year conditional residence period. USCIS may challenge the "fully invested" criterion unless your investor has really good accounting information to turn back the challenge. It's probably best for the investor not to take a return on her investment for the two-year conditional period, unless you have good accounting.
Legal issues in conditonal removal petition
When we skip over to 8 CFR 216.6, we see words such as "good faith" and "substantial compliance" and "actively in the process of investing".
The secret to successful prosecution of I-829 petitions? GAAP. Generally Accepted Accounting Principles. And a name-brand accounting firm if you can afford one. The best regional centers use them. Accountants can be relied upon to help your client on both critical points: proof of investment and proof of job creation.
8 CFR 216.6(4)(iii) states that the alien investor must present "[e]vidence that the alien sustained the actions described in paragraph (a)(4)(i) (evidence that a commercial enterprise was established by the alien) and (a)(4)(ii) (evidence that the alien inevested or was actively in the process of investing the requisite capital) of this section throughout the period of the alien's residence in the United States. The alien will be considered to have sustained the actions required for removal of conditions if he or she has, in good faith, substantially met the capital investment requirement of the statute and continuously maintained his or her capital investment over the two years of conditional residence. Such evidence may include, but is not limited to, bank statements, invoices, receipts, contracts, business licenses, Federal or State income tax returns, and Federal or State quarterly tax statements.
Focus on the specific requirements stated in 8 CFR 216.6 and analyze what each requirement entails, and if USCIS imposes any additional requirement on top of these specific requirements, that is unlawful and should be challenged in federal court. I would also point out "good faith" and "substantial compliance" now have legal meanings, as well as the apparent requirement that the alien investor invest in the new commercial enterprise entity.
When have some questions that still have no answers:
How long does the investment capital have to stay in the new commercial enterprise entity?
According to the 8 CFR 216.6, the alien investor's capital investment must have been maintained in the new commercial enterprise for two years (the conditional residence period).
Do newly-created jobs have to be in both a TEA and within the geographic boundaries of a regional center area? This controversy was actually created by USCIS during an EB-5 stakeholders' conference call. The USCIS HQ representative opined that even indirect and induced job creation must take place within the geographic boundaries of the regional center. You could hear the collective expletives around the nation, even though no one but USCIS employees and possiibly a non-employee moderator can be heard. On another matter of great concern out there among practitioners is the Neufeld memos issued by USCIS during the past year or so. One colleague who is very knowledgeable concerning the EB-5 Program says the memos are unlawful attempts to create new EB-5 law which is ultra vires to EB-5 statutes and in violation of the existing regulations.
(4) Documentation. The petition for removal of conditions must be accompanied by the following evidence:
(i) Evidence that a commercial enterprise was established by the alien. Such evidence may include, but is not limited to, Federal income tax returns;
(ii) Evidence that the alien invested or was actively in the process of investing the requisite capital. Such evidence may include, but is not limited to, an audited financial statement or other probative evidence;
(iii) Evidence that the alien sustained the actions described in paragraph (a)(4)(i) and (a)(4)(ii) of this section throughout the period of the alien's residence in the United States. The alien will be considered to have sustained the actions required for removal of conditions if he or she has, in good faith, substantially met the capital investment requirement of the statute and continuously maintained his or her capital investment over the two years of conditional residence. Such evidence may include, but is not limited to, bank statements, invoices, receipts, contracts, business licenses, Federal or State income tax returns, and Federal or State quarterly tax statements.
Matters concerning what happens if a W-2 submitted on behalf of your investor is that of an alien unauthorized for employment are beyond the scope of this discussion, but you should be aware of it.