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Creation & Operation Of An EB-5 Regional Center

 Advantages of EB-5 Regional Center Status

For businesses, becoming a USCIS-approved EB-5 regional center offers unique opportunities to raise inexpensive capital. While business projects can be funded with direct EB-5 investments, most entrepreneurs either rent an EB-5 regional center or apply for their own regional center designation.

As opposed to most direct investments, EB-5 regional centers can work with any number of EB-5 investors on a single project, greatly increasing the project’s access to capital. The primary advantage of working through an EB-5 regional center, though, is how job creation is calculated. For direct investments, the USCIS requires the EB-5 project to directly create 10 full-time job positions per EB-5 investor. For projects sponsored by EB-5 regional centers, however, the required 10 full-time positions per EB-5 investor may be direct, indirect, or induced.

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The process of becoming a regional center can be slow and costly, which is why some businesses opt to rent regional centers for their projects instead. But for those who have the time and capital, owning and operating a regional center may be an excellent option. Ultimately, the particular needs of each business should be taken into consideration when determining whether or not regional center designation is the best path forward.

EB-5 Regional Center Basics

An EB-5 regional center is an economic unit involved in promoting economic growth. Such growth may be in the form of job creation, regional production, export sales, and EB-5 investments.

The USCIS does not require any particular license, and any U.S. commercial entity or government agency can apply for EB-5 regional center status.

To become a USCIS-approved regional center, a business or organization must complete and submit Form I-924, Application for Regional Center Under the Immigrant Investor Pilot Program, and any necessary supporting documentation. Filing this form with the USCIS presently carries a cost of $17,795.

The overall cost to gain regional center approval, however, may be far higher depending on additional documentation requirements and how those requirements are met. For example, a business might hire several professionals to write the required comprehensive business plan and the necessary economic impact report.

EB-5 Project Readiness

Every application to the USCIS for regional center approval must be accompanied by a project. This project’s readiness determines the particular documentation that will be required in addition to Form I-924. The USCIS categorizes projects as either hypothetical, actual, or exemplar.

Hypothetical Projects

A hypothetical project contains general proposals and predictions but is not supported by a Matter of Ho compliant business plan. The USCIS may consider such a project sufficient in proving the proposed regional center will likely promote economic development.

Actual or “Exemplar” Projects

An actual project offers more detailed and conclusive documentation. This documentation demonstrates through verifiable economic or statistical evidence that the proposed regional center will promote economic development.

An exemplar project includes the actual organizational and transactional documents of the commercial entity seeking regional center designation. Such a project also includes a sample I-526 petition with its Form I-924.

Applications that involve actual projects must include a comprehensive project business plan instead of a sample business plan. Additionally, actual projects must include sample transactional documents (e.g., investor subscription agreement and private placement memorandum).

For exemplar projects, final transactional documents are required instead of sample transactional documents, and a sample Form I-526, Immigrant Petition by Alien Entrepreneur, must also be submitted.

Applying for EB-5 Regional Center Status

1. Determine the Regional Center’s Scope

The USCIS requires regional center applicants to clearly define both the geographic scope and industry scope of their projects. In particular, the geographic scope should include reference to any targeted employment areas (TEAs) within which the EB-5 regional center will operate.

2. Prepare the Required Documents

All EB-5 regional center applications require the following documents:

Operational business plan

Corporate structure agreement

Sample project business plan

Economic report for the project

Legal securities documents

Legal immigration documents

Sample management agreement between regional center and project

Due to the complex requirements of the USCIS, preparing these documents typically requires the engagement of professionals in relevant areas of expertise.

For example, the USCIS reviews business plans according to the standards set forth in Matter of Ho, an Administrative Appeals Office (AAO) precedent decision. These standards dictate that the business plan must be credible and should contain the commercial enterprise’s organizational structure, its staff’s experience, and its staffing requirements, including job descriptions for all positions and a hiring timetable. The plan should also include a detailed market analysis, the commercial enterprise’s market strategy, a list of any required permits and licenses, details of any contracts related to supply and distribution, and descriptions of any manufacturing processes. Finally, the plan should include projections for sales, expenses, and income—and a detailed explanation of how these figures were determined.

The economic report is another example of a document that should be prepared by an expert. In addition to showing whether or not the project is in a TEA, this document is used to demonstrate that the project will create the required number of jobs. While direct job creation may not seem complicated, regional centers are also allowed to count indirect and induced jobs when calculating overall job creation. Indirect jobs are those created as a result of the project’s development and ongoing operation (e.g., purchasing building materials, supplies, etc.). Induced jobs, on the other hand, are those created by the economic impact of the project (i.e., the money spent by the project’s employees). Indirect and induced jobs must be demonstrated using accepted economic methodologies.

Transactional documents should be prepared by securities counsel with relevant EB-5 experience. In addition to compliance with the Securities and Exchange Commission (SEC), the investor subscription agreement and private placement memorandum must comply with the USCIS, particularly the requirement that the EB-5 investors’ capital is actually “at risk”—an intent to invest is insufficient.

3. Submit Form I-924

With the necessary documents prepared by the appropriate experts, Form I-924 can be submitted to the USCIS for approval. Once Form I-924 is filed, the USCIS allows the applicant to market their project—but the applicant cannot accept investments until the USCIS approves their I-924 petition.

Operating an EB-5 Regional Center

1. Submit I-526 Petitions

Once the USCIS approves Form I-924, the applicant receives USCIS designation as a regional center and can submit EB-5 investors’ I-526 petitions. Each Form I-526 must be accompanied by the actual or exemplar project documentation. Once an investor’s I-526 is approved, he or she gains conditional permanent resident status.

2. Manage Projects and Maintain USCIS Compliance

To maintain USCIS compliance, the regional center is required to track its projects’ job creation and annually file Form I-924a, a supplemental compliance document. Failure to submit Form I-924a can result in the termination of regional center designation. In addition to this USCIS filing, the regional center must complete the proper documentation for the SEC and other agencies that regulate securities at the state and local levels.

3. Prepare Documentation for EB-5 Visa Applicants’ I-829 Petitions

For EB-5 investors, the last step in obtaining an EB-5 visa is submitting Form I-829, Petition by Entrepreneur to Remove Conditions, which allows investors to change their status from conditional permanent resident (granted by Form I-526) to lawful permanent resident. This form is filed by each EB-5 investor, but the necessary supporting documentation is provided by the EB-5 regional center.

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Zvia MenteshZvia Mentesh
07:04 08 May 22
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