More than 95% of all investments in the EB-5 program are made through Regional Centers. The benefits of investing through Regional Centers are numerous, including the fact that job creation is more manageable because indirect and induced jobs are counted as well as direct jobs; they are usually located in targeted employment areas, thus reducing the amount of investment to $900,000; and the investor need only play a minimal role in the actual management of the enterprise. The popularity of the RCs has led to a surge in their numbers — to more than 750 already approved.
But how does an investor decide in which Regional Center project to invest? As a general rule, we are able to provide comparative immigration-related information about certain Regional Centers and projects. In addition, we can refer the investor to financial specialists who can provide in-depth due diligence on a project, Regional Center and management company. In any event, we urge investors to travel to meet with representatives of Regional Centers before making an investment decision.
To make the selection process easier, more detailed Regional Center information is provided below.
What are the financial risks involved with the Regional Center investment projects?
All investments are risky by nature and the Regional Center projects are not exceptions. Under the law, the Regional Center cannot guarantee profit or the return of the principal investment.
How do the Regional Centers work?
An EB-5 management company applies to USCIS to approve the creation of a Regional Center within a specific geographic area. “Regional Center” is the designation granted by USCIS to entities, organizations, companies, or agencies that focus on a specific geographic area within the United States in order to promote economic growth within that area. The regions are usually in targeted employment areas (TEAs): rural (cannot have a population greater than 20,000), or have an unemployment rate that is at least 1.5 times higher than the national average. Regional Centers work to create new jobs, improve regional productivity, construct new buildings (hotels, warehouses, convention centers, office and residential complexes) and increase domestic capital investment.
If a Regional Center project is located in a TEA, then the minimum investment amount is $900,000 and the jobs must be created in the TEA. Regional Centers have the important benefit of being able to count both direct jobs (e.g., construction) and indirect and induced jobs (e.g., suppliers of construction materials, job creation resulting from spending).
After USCIS approval, the Regional Center usually sets up a limited partnership or limited liability company for an individual project (it can set up numerous entities for various projects within one Regional Center geographic area). The limited partnership has a general partner, usually affiliated with the EB-5 management company, who runs the project on a daily basis. The partnership has numerous limited partners (the EB-5 investors), who provide the financing for the project. Some projects pool together more than 500 limited partners ($250 million).
In general, there are two types of projects:
- the limited partnership offers equity ownership in a project, usually a real estate project, and each limited partner receives a share of the profits according to a percentage stipulated in the partnership agreement; or
- the limited partnership provides financing to a corporate third party (e.g., real estate developer, hotel chain), usually with some guarantee and/or collateral offered, and each limited partner receives interest on the loan.
The loan model greatly predominates because the overwhelming majority of EB-5 investors prefer the liquidity of a term loan to receive back the principal sum of their investment.
How to choose a Regional Center project?
Because of our longstanding EB-5 experience, we are familiar with many of the Regional Centers with extended track records. We are lawyers and thus do not seek to “promote” one Center over another. We know the advantages and disadvantages of many of the Regional Centers, provide objective immigration-related information, and recommend that investors visit the US and meet with the managers of the Centers before making a decision. We recommend that investors work together with independent financial advisors who can provide due diligence and assessments of the viability of the project.
What exit strategy is usually offered for my investment?
In a financing arrangement, the loan to the third party is offered for a defined period, usually 5–6 years, after which the debtor is obliged to pay off the principal amount of the loan. It is at that point the investor receives back his principal. In an equity arrangement, the investor’s share can be sold after a certain period, usually 5 years.
Where can I find a list of Regional Centers?
A list of Regional Centers can be found on the USCIS website at this link: https://www.uscis.gov/working-united-states/permanent-workers/employment-based-immigration-fifth-preference-eb-5/eb-5-immigrant-investor-regional-centers
What questions should I ask the representative of the Regional Center?
The terms and conditions under which an investor will invest in a Regional Center are governed by the legal documentation. It is critical to understand that these terms and conditions vary depending on the Regional Center. In any event, the investor should be asking the following questions:
Is an Escrow Account used? If so, what are the terms of the escrow? Some freeze the funds until there is an approval of the petition; some freeze the funds until a certain number of investors’ petitions have been approved by USCIS; some do not use an escrow account. Some may seek to gain your authorization to release funds from escrow because of pressure from the borrowing company, which does not want to wait for the funds.
What are the terms of refund in the event of petition denial? Within what timeframe are the funds returned? Some refund the entire sum transferred ($900,000 + administrative expenses). Some only return the $900,000. Usually the funds are returned within 30–90 days; some may delay a refund until a new investor is found.
What happens if the petition is approved but the visa is denied? It is possible that USCIS approves the petition, but at the consulate, the investor receives a denial on an admissibility ground (e.g., criminal, security, medical). Some refund the entire sum; some refund $900,000; some will refund depending on the reason for the denial; and some may not refund at all, i.e. the sum will remain invested.
2. Management Company
Who will be managing the investment on a day-to-day basis? Where are they based? What is their financial background? The management company is usually the general partner, who will oversee the investment, report to the investor, and ensure EB-5 compliance. A management company may operate several Regional Centers.
Who are the individuals at the company with whom you will be interacting? Do any of them have a criminal record? USCIS does not carry out background checks on the managers of Regional Centers.
What is their EB-5 track record? How many I-526 approvals has the management company overseen? How many denials? How many I-829 condition removals? I-829 denials? USCIS does not publish these statistics yet.
Will the management company allow you to use your own EB-5 attorney, or do you need to retain an attorney appointed by the management company? If you must use a certain lawyer, you should think twice about investing in that project. Has that attorney represented the Regional Center in its USCIS filings, presenting a potential conflict of interest between the Regional Center and the EB-5 client?
Is the management company willing to meet with the lawyer and/or financial advisor of the investor?
3. Carrying on of Business
If the project is equity-based, what is the profit split? For some, it may be 70% to the limited partners and 30% to the general partner. It may be 80/20. It may be entirely set aside for the limited partners. How much in dividends, if any, can the investor expect to receive? When are dividends distributed?
Could the investor be subject to a cash call (required to put up additional sums, beyond the $900,000)? For example, if the real estate business plan calls for finding and leasing out the commercial space to tenants, what happens if no tenants are found? Who will pay for the cost of maintenance? Taxes?
What is the investor’s role in the business? Is there an annual teleconference? How often does the management company send out reports?
If there is any material change in the business over the two-year conditional period — one not stipulated in the business plan — the investor may have to start all over again and submit a new I-526 petition after the condition removal petition is denied. A material change may be a new type of business; manufacture of a new product; substitution of a new debtor. Sometimes these material changes may occur due to events outside the control of the general partner — a hurricane hit the area where the company was located, for example. But for non-force majeure events, can the general partner unilaterally make and implement a material change in the business during the two years?
What happens if the debtor is unable to return the loan after five years? What security or collateral is being used? In a battle with other potential creditors, is the limited partnership first in line? 2nd? 3rd? What is the current balance sheet position of the debtor? Has there been an independent audit?
5. Investor Quota Not Met
What happens if a project does not fill up, i.e., attracts fewer investors than stipulated? Is another source of financing available? If a project does not commence operations, the I-829 condition removal petition will possibly be denied.
6. Condition Removal Stage
Will the management company prepare the documentation necessary for the condition removal petition? Will the investor have to pay an administrative fee for the documentation? What will the management company do if the condition is not removed? A project manager cannot guarantee return of invested funds if the condition is not removed, but can take steps to ensure that the investor can liquidate his investment.
7. Exit Strategy
What is the exit strategy? For debt arrangements, the strategy is usually to receive payment of the principal of the loan after a certain period of time (5–6 years). At that point, the proceeds are distributed to the investors (limited partners). For equity projects, at what point may an investor sell his share? What is the market for his share (usually part ownership in a particular real estate project)? How easy/difficult will it be to find a buyer? What assistance will the management company provide in finding a buyer? Will the value of the share appreciate or depreciate?
8. TEA — Targeted Employment Area
For investors in a Regional Center to be eligible for the reduced investment sum of $900,000, the enterprise must be located in a targeted employment area. A targeted employment area must be rural (population less than 20,000) or have an unemployment rate 150% of the national average at the time of filing the petition. To address the practice of gerrymandering — Regional Centers combining and contorting census tracts to aggregate unemployment statistics to reach 150% — USCIS’ new regulations stipulate that only certain census tracts may be used. Specifically, USCIS now requires that for purposes of a targeted employment area and computing unemployment data, only the census tract in which the project is located and any or all directly adjacent census tracts qualify. USCIS has also eliminated the concept of state designation of TEAs; now USCIS will make the decision on what areas qualify. USCIS is seeking to ensure that projects will be located in truly needy areas, not prestigious downtown districts seeking to add another skyscraper or illustrious hotel. Questions of interest for the investor remain: How did the Regional Center aggregate census tracts to reach the 150% national average? How recent are the unemployment statistics? The problem of “stale” statistics and a change in TEA status remains: at the outset — for example, investors #1–45 — the project qualified as a TEA, but a year later, after the release of new employment statistics, the project may not qualify as a TEA for investors #45–50 ($1.8 million needs to be invested).
9. Project-Specific Issues
Just because a Regional Center has been approved does not mean that this particular project within the RC has been. USCIS can pre-approve the project — if the RC submits project documentation to USCIS, the USCIS can approve the project and, at least theoretically, investor petitions submitted pursuant to an approved project will only be scrutinized on source of funds issues, not project-related issues. However, the pre-approval process requires substantial time. So as not to lose time, RCs usually do not go through the pre-approval process, instead submitting the project documentation for initial review as a part of an investor petition. Even a project pre-approval or the approval of an investor petition in the project is not a guarantee that your petition will be approved, but it reduces the risk. Has there been a USCIS pre-approval of this project? Have investor petitions already been approved for this particular project? Denied? How many investors have already signed up for the current project? USCIS will not provide approval/denial statistics for specific projects.
What is the investor’s place in a current project? The place of the investor in the project can be important because newly created jobs are usually allocated in chronological order: the first investor is allocated the first ten jobs created, the second investor is allocated the second ten jobs created, and so on. Thus, it is of benefit to not be one of the last investors in a project in the event of a job shortfall. While this issue should be obviated by adherence to the business plan and adherence to the job creation methodology utilized, the issue can nevertheless become relevant at the condition removal stage.
10. Job Creation
What job creation methodology is used by the Regional Center project? How many direct, indirect, and induced jobs are being projected? What is the projected surplus of jobs beyond the minimum number required for all investors? Does the RC also count jobs created because of leverage (without the investment of the RC other investment would not flow. Because the RC invested, another funding source has also invested, and the RC counts jobs not only from the EB-5 investment but from the other funding source as well.)?
If you would like assistance in screening out potential Regional Centers and EB-5 management companies on immigration-related issues, please feel free to contact us. For financial analysis support, we can put you in touch with specialists.