How do immigration attorneys help EB-5 project developers?
I work for a Canadian residential condominium developer. We are expanding our operation to California, and exploring using EB-5 investment as an alternative or a combined solution for our project. Assuming we will be both the JCE and NCE, am I correct in thinking the first step is to retain an immigration attorney, to help select a regional center? Or would a broker be more important to consult at the early stages of project development? What do immigration attorneys help EB-5 project developers with?
You had better find an immigration attorney first, because you need to know the exact location that is located in the regional center. You can create one regional center; however it may take you a few years to get it done. When EB-5 investment is involved in your program, USCIS has some specific requirements that will affect the time schedule of your program.
We assist developer clients to establish a structure compliant with the U.S. law and USCIS rules, regulations, and policies, and documentation that will form the basis for approvable I-526 petitions. We also help prepare forms for regional center designation or EB-5 project pre-approval. We assist other professionals with immigration related issues in their work product. We also assist with ongoing USCIS compliance and annual reporting. We can also assist with reviewing I-526 petitions prepared by an investor's own attorney.
Each professional in the EB-5 process has its own role(s). Typically, brokers are not attorneys, they may help organize business deals such as investment advisory, but make sure they are not engaging in unlawful practice of law if you do hire them. As with immigration attorneys, they are at the forefront of securing that potential investors follow the EB-5 rules and regulations, vetting out who can and cannot qualify to invest in the first place, ensuring the investors can actually immigrate to the United States and eventually do so. These are just some of the roles the immigration attorneys do regularly perform. Advisably, consult an EB-5 attorney to further outline and discuss the roles of these professionals.
Immigration attorneys who represent regional centers and project developers often liaise very closely with regional centers around the United States. As a project immigration counsel, the role of an immigration attorney can be to organize and oversee the setup of a regional center project in collaboration with a multidisciplinary team. That is, an EB-5 immigration attorney can "quarterback" the project by setting up a project for EB-5 investors with the support of corporate securities attorneys, an EB-5 economist, business plan writer and other important members of the team. Further, with hundreds of regional centers, finding the right center (or forming your own regional center) that is suitable for your project will be within the scope of knowledge of a qualified immigration attorney.
An experienced EB-5 immigration attorney is able to assist the developer and promoter by structuring the project and drafting documentation to ensure that it meets EB-5 regulations and requirements. Given the impact of securities legislation, it may also be prudent to consult a securities attorney for advice on compliance.
You will need a securities attorney and corporate attorney to advise you, given some restrictions on the operation of projects by non-U.S. citizens. Immigration attorneys will work with a securities attorney to put together the regional center structure and advise on compliance matters, both securities- and immigration-related.
Immigration attorneys help developers with many things. EB-5 is, first and foremost, an immigration program, and an immigration attorney should be involved throughout the entire, multi-year EB-5 life cycle. The first thing we do is provide background on the program and help a developer decide if EB-5 is right for them. EB-5 does not work for every project, and there is some complexity and uncertainty that does not suit every developer's disposition. Next, we can help find the team. A successful EB-5 project is minimally going to need an immigration attorney, securities attorney, EB-5 business plan writer and EB-5 economist. If your team does not have experience with EB-5, you are in for a long and difficult ride. There are a number of ways in which EB-5 differs from ordinary business, and it takes experienced people to navigate all the nuances. Probably most importantly, an immigration attorney is going to work with the securities attorney and other professionals to structure the deal to be compliant with the EB-5 rules and policies. If you do it right, your project should generally not get denied. If you do it wrong, there is a big risk that your project could be denied, and all the investors who invested in your project could be denied also. Ultimately, it is up to the immigration attorney to find immigration solutions to your business goals, and to make the program work for you. A knowledge of deal structure and how transactions work, as well as an ability to find creative solutions within the immigration requirements is critical here. (While there are many, many immigration attorneys representing investors in their EB-5 filings, there are really only a handful of deal-side immigration attorneys that handle any volume of projects for this reason). An immigration attorney with experience in EB-5 from the developer/regional center perspective should also be able to advise you on structuring the project according to investor market trends. An immigration attorney is not going to advise you on the sales process, what you can and cannot do to sell your project, or on any other securities law issues, but can provide insight from past successful projects. In terms of the nuts and bolts, we review all documents for EB-5 compliance, prepare regional center applications and amendments, prepare template I-526 petitions and I-829 petitions to be used by investors, prepare template RFE responses, and solve any problems that arise along the way. An immigration attorney can also help you set up an EB-5 compliance program, so you can be sure that you are keeping all the documents and data you need for the annual reporting requirements, the I-526 and I-829 petitions, and to be prepared for USCIS site visits and audits. The timeline from the day you start down the path to the day you pay back your last investor and exit the program can be anywhere from 5 to 10 years. An immigration attorney will be there with you throughout this process to guide you through all the various program requirements.
An experienced project attorney is going to be critical to your success. You should consult with and retain counsel that can demonstrate to you that they have both experience and a successful track record. This is a complex process and is not something you can accomplish without competent counsel.
John J Downey
An immigration attorney versed in EB-5 will be invaluable to you. The attorney can bring you up to speed on the latest requirements of USCIS and that will help you in selection of a regional center The attorney will guide you as to the type of business organization would be best for the NCE, i.e., LLC, limited partnership, etc.
An immigration attorney would be a good place to start. He or she can act as the team "quarterback" and help to assemble the other professionals needed to make your regional center project a reality. It is important to have someone who can coordinate the work done by the business plan writer, the SEC attorney, the economist, the broker/dealer, etc. into a comprehensive package that will give your project the best chance of approval.