By Lauren Cohen
The EB-5 investment process can be confusing and complicated and often involves interaction with multiple governmental agencies in both the United States and the investor's home country. The paperwork and documentation needed to successfully submit an I-526 petition can be quite daunting. EB-5 investors must complete and submit petition paperwork, the accompanying business plan, various reports and all other requisite ancillary documentation. Smart petitioners understand that the process requires important input and preparation of materials by experienced industry professionals. Below is a quick overview of some professional resources that are vital to putting together a successful EB-5 petition.
Immigration legal counsel
The importance of experienced and competent immigration legal counsel cannot be over-emphasized. Immigration counsel needs to be the central building block that acts as the facilitator and liaison for all the related EB-5 resource providers working on the project. EB-5 investors should look for an immigration attorney with specific and documented experience in the EB-5 process. The American Immigration Lawyers Association (AILA) is the national association of over 12,000 attorneys and law professors who practice and teach immigration law. You can consult EB5Investors.com’s directory of immigration attorneys to find an attorney that is experienced in EB-5 work.
Among the services that immigration counsel provides is counseling on all aspects of the I-526 petition process, preparation of all petition and related regulatory documentation, representation before USCIS, liaison services with other ancillary resources, and all other legal support for the petition.
Professional EB-5 business plan preparation
Absolutely critical to a successful EB-5 petition is an experienced EB-5 business plan preparation firm. It is required by USCIS that an EB-5 investor prepares and submits a comprehensive and compliant business plan to USCIS that adequately and professionally describes the proposed business project and investment. Failure to submit a compliant business plan will result in a denial of the I-526 petition.
EB-5 business plans must comply with the requirements of USCIS as set forth in 1998 in a precedent-setting case which has become known as Matter of Ho. In that case, a list of mandated elements that must be present in all EB-5 business plans was set forth. This list essentially clarifies what must be shown by the petitioner to establish that the proposed business and the business plan are credible.
The list of required elements includes the following:
- A budget and financial projections,
- Personnel experience,
- A description of the business,
- A marketing plan with target market analysis,
- The business structure,
- Staffing timetable for hiring,
- Required licenses and permits,
- Job descriptions, and
- A competitive analysis.
Many of these required elements are complicated and challenging and must be presented professionally and with extensive detail. The best way to ensure that the business plan is prepared in accordance with USCIS’s mandate is to engage the services of a professional EB-5 business plan writing company.
Essentially, the business plan should show how the proposed business plans to utilize the EB-5 investment to create jobs and to stimulate the economy. By using a professional business plan preparation firm, the EB-5 investor (or developer) can have confidence that the plan has the best possible chance of passing USCIS scrutiny. A good business plan company knows USCIS’s requirements inside and out and knows how to best show that the mandated requirements are likely to be fulfilled by the EB-5 petitioner.
The more detail included in a business plan submitted with the EB-5 petitions, the better the chances are for the determination of the business’ potential for success by the reviewing agency. The reviewing agency must be able to draw “reasonable inferences” about the business’ potential viability from a basis provided in the business plan. Along with the counsel of an experienced immigration attorney, professional business plan preparation is one of the most important outside resources for EB-5 petitions.
As noted, Matter of Ho requires that the EB-5 investor document the job creation and economic impact of the EB-5 investment within the business plan. Although this requirement can be shown in different ways, the best way to satisfy this vital requirement is through an economic study prepared by a professional economist. A professional economist speaks the economic language that USCIS examiners want to see regarding the economic impacts of the proposed project. Through statistics and charts, an experienced economist can make a convincing argument, backed by solid calculations and assumptions, that the EB-5 project will create the required 10 full-time jobs and that the anticipated economic impact justifies the approval of the I-526 petition.
A good resource to find a qualified economic consultant is the National Association for Business Economics (NABE). The NABE is the largest international association of applied economists, strategists, academics, and policy-makers committed to the application of economics. The association's membership is divided into various subject-oriented subdivisions or roundtables, which makes it is easy to find an economist experienced in the type of business proposed by the EB-5 petition. Many business plan firms also offer this service through experienced economists that they utilize on a regular basis.
The services of an experienced marketing firm that has represented businesses in the same industry as the proposed EB-5 business is also important, both to conduct a market study and to prepare a competitive analysis, both of which will help the petitioner to prepare the requisite marketing plan. These are also key requisite elements of an EB-5 business plan. Generally, USCIS wants to see that the proposed business has done a serious analysis of the marketplace and has put a solid plan in place to market and differentiate the proposed business. This is also a crucial element in establishing a successful business. Once again, many business plan preparation firms are good resources for either directly preparing the market study or connecting with experienced marketing firms to assist in fulfilling this requirement.
Successful EB-5 investors make use of professional resources. The additional expense of using such professional resources is more than offset by the improved success rate enjoyed by those who commit to presenting strong, professional business plans, petitions and ancillary documents to USCIS.