by Edward C. Beshara & Rogelio Caceres
Brazil has always been called the country of tomorrow. In the world of EB-5, Brazil’s time might finally be now!
The purpose of this article is to provide a practitioner’s roadmap of the current EB-5 market in Brazil and to learn how to best approach it from the perspectives of both a regional center and an immigration law firm.
With the right analysis and advice, the Brazilian investor can pursue temporary immigration and tax planning processes and options for immediate entry into the United States. They can thus concurrently prepare and legally start the process for obtaining the EB-5 program’s conditional permanent residency status for themselves and each qualified family member.
The most common statement from Brazilians to the authors, even those who have been given advice from those who claim to have the answers for Brazilians preparing entry into the United States, is, “ I wish we had heard this advice before, and thank you.”
There is no replacement for credible and current legal, immigration, tax, and investment advice from practitioners, or for a regional center that has the experience and expertise to ensure best practices and compliance.
Current EB-5 Market in Brazil
Despite having Latin America’s largest economy and largest population (over 250,000 millionaires reside in Brazil), past penetration of the EB-5 visa has been incredibly low (less than 50 I-526 applications were received by USCIS in FY 2014).
Reasons for this low penetration center around two important factors:
- Until recently, booming economic conditions across Brazil have not been conducive to attracting EB-5 investors;
- There is a complete lack of awareness and understanding about the EB-5 program. As opposed to other important EB-5 markets, particularly China, there is a complete lack of a migration agent structure in Brazil. Therefore, regional centers have had to independently spend significant amounts of time, energy and money to generate a basic understanding about the key requirements of the program, timelines and expected outcomes.
Approaching the Market
Whereas the Chinese market has a well-developed network of migration agents, no such EB-5 agent or broker infrastructure exists in Brazil. EB-5 projects that require a definite EB-5 raise, whether it is $500,000 or $50 million or more, can enter into an agreement with a Chinese agent or broker and be assured of the supply of EB-5 investors within a definite period of time.
However, this reliable source of Brazilian investors from agents or brokers does not exist. How does one approach the Brazilian market?
Hotel seminars that are marketed broadly to local communities are not very effective and rarely lead to new investors, because they attract potential investors that are at the very beginning of the educational process about the EB-5 program.
These investors are months, if not years, away from making a decision, and regional centers can spend a lot of time educating them about the U.S. immigration system without any return.
Most importantly, truly qualified investors in Brazil have typically already researched the EB-5 program, compared to other visa options like the L-1 and E-2 visas, and decided to move forward with the EB-5 visa option. Their final decision typically involves which U.S. immigration law firm and approved regional center to work with.
The U.S. global taxation regime is also an obstacle. Brazil’s high net-worth investor community enjoys one of the lowest effective tax rates around the world. In fact, the top income tax rate is 29 percent; the inheritance tax (also known as the death tax) ranges from four to eight percent and the tax rates on company profit dividends to shareholders could not be any lower at zero percent. While most Brazilians considering EB-5 have purchased real estate properties in the United States, very few of them are aware of the global tax on worldwide income requirement that comes with being a United States green card holder. Therefore, being able to provide access to proven U.S. pre-immigration tax experts, ideally with Portuguese language capabilities, will help accelerate your EB-5 marketing efforts.
Sourcing the small number of Brazilian EB-5 investors is more realistic for smaller EB-5 raises, or, alternatively, for individual investors being referred to EB-5 regional center projects that require a large raise from China, but can accept individual investors from other countries.
Choices for Brazilians
They can direct their own U.S. business
Brazilians have been traveling to the United States as tourists and doing business for decades. They are of the opinion that Brazil and the United States both recognize a legal system which enforces contracts and the traditional European systems of doing business. That given, Brazilian investors, more so than their Chinese counterparts, are often willing to establish their own U.S. business and personally direct their U.S. operations.
In this context the Brazilian investor may desire to invest their EB-5 investment funds into their own U.S. business and personally direct its operations. However, even though this may be the intent of Brazilian investors, they will not be able to live by, work or direct their U.S. EB-5 operation until their I-526 petition and their conditional permanent residency visa have been approved.
Brazilians by their very nature are an optimistic people – this is the “country of tomorrow,” after all. They are used to living in an economic environment that historically has suffered from booms and busts, where inflationary risks are always looming.
Therefore successful Brazilian businesspeople and investors are comfortable with quantifying risk and navigating it successfully.
This exposure and affinity to risk can be helpful to project developers and regional centers with innovative and non-traditional projects since Brazilians can be more willing to entertain such ideas. On the other hand, similar to Indian investors and those from other Latin American countries, Brazilian investors typically frown on projects that offer little to zero returns. To be successful in the Brazilian market, one must offer a clear-cut and believable exit strategy to the EB-5 investor.
Because of their ability to be flexible, Brazilian investors can enter the United States more quickly by pursuing alternative non-immigration processes, like the L-1 or E-2 visas, so that they can direct their new U.S. operations perhaps even within a few months.
Preparation for the EB-5 Process
Usually the agents or brokers for Chinese investors are seeking advice and doing their due diligence to make a decision for their groups of investors. The Chinese investors often rely on their relationship with the agents to make a decision for them.
However, Brazilian investors who are familiar with the infrastructure of U.S. business often desire to make their own inquiries, ask questions, analyze the answers, and conduct their own due diligence of potential EB-5 immigration attorneys and other advisors.
At these early stages of the EB-5 process, there is more interaction between the EB-5 project, EB-5 immigration attorneys and the Brazilian investors than there is with Chinese investors.
Source of Funds
In the Chinese EB-5 process there is substantial reliance on agents or intermediaries to assist the EB-5 immigration attorney with obtaining the legal source of funds documentation. Even though there is contact and correspondence with the Chinese investor, the agent or intermediary plays a primary role.
For Brazilian investors, the EB-5 immigration attorney plays a substantial role in the interaction with the investor through conferences and correspondence.
Note the following examples of the types of broker documents which would be requested for source of fund documents:
- Documents needed to prove opening of a corporation:
- Contrato Social/Contrato de Constituição de Sociedade Limitada/etc. (Articles of Incorporation)
- Comprovante de Inscrição e de Situação Cadastral (Proof of Current Registration)
- Documents related to lease/purchase of commercial property:
- Contrato de Locação de Imóvel Não Residencial (Lease Agreement)
- Documents from the Cartório de Registro de Imóveis (Registry of Real Estate)
- Contrato de Compra e Venda (Contract of Purchase and Sale of Real Estate)
- Documents related to source of funds:
- Declaração de Informações Econômico-Fiscais da Pessoa Jurídica (Tax Return)
- Bank statements showing deposit/withdrawal of funds
- Declaration of joint assets (Between husband/wife)
- Comprovante de Pagamento de Swift (Proof of Swift Payment)
Brazilian investors are familiar with the nature of the requests for the legal documentation authenticating the source of the personal investment funds. Correspondence and directions to the Brazilian investors can be quick and hence the preparation and filing of their I-526 petitions will occur substantially sooner than the filing of the Chinese investor I-526 petitions.
Effective and Efficient Relocation
Binding ties to the United States
Once Brazilian investors decide to live and work in the United States, either on a temporary or permanent basis, often their intent is to quickly establish binding ties to the United States.
Brazilians may already have B-1 and B-2 visas that can allow them to spend up to six months at a time in the United States. F-1 and F-2 student visas also may allow the family to immediately live and attend school in the United States.
If Brazilian investors have decided to pursue permanent residency through an EB-5 regional center project or an EB-5 direct project, they may also decide to obtain an L-1 or E-2 visa so as to quickly be able to live and work in the United States. Once
Brazilian investors obtain their conditional permanent residency, they may decide not to pursue E-2 or L-1 businesses. That is, they may desire to continue to operate their U.S. businesses but not under the L-1 or E-2 regulations.
Pre-Immigration Tax Planning
Once a Brazilian investor decides to pursue conditional permanent residency, it is advisable for the investor to immediately retain the services of an experienced international tax attorney and financial advisor to advise on legal processes to minimize their U.S. and Brazilian tax burdens. If Brazilian investors are not advised accordingly, to their surprise and disadvantage they may be burdened with taxes which they could have legally minimized. Chinese agents or brokers are aware of the need for the Chinese investors to obtain international tax advice but their advice for their investors to do so has been secondary. Chinese investors continue to rely on the advice of their agents primarily, while Brazilian investors are often more familiar with the U.S. legal and tax systems and have similar tax liabilities in Brazil.
Originally, the EB-5 projects were attracted to EB-5 investors because of the low cost of EB-5 capital from China and to a lesser extent from other countries. However, the EB-5 process developed with the incorporation of agents and brokers sourcing the investors especially from China. Unfortunately, based upon this infrastructure the cost of obtaining EB-5 investors was unreasonably increased to the financial detriment of EB-5 projects. The final question or hope for EB-5 projects is that the cost of obtaining Brazilian investors remains low and reasonable.
In addition, with best practices, the Brazilian investors can themselves receive immigration due diligence from the immigration attorney and also receive investment due diligence from independent sources such as accountants or other financial advisors, communication with regional center issuer principals, so as to decide on the best regional center project for their immediate goals.
Edward Beshara is an EB-5 immigration attorney at Beshara P.A. in Maitland, Florida.