amount. First, the professionals desire
the documentation to be immediately
compliant. Second, the project developers do not want to start the compliant
project documentation until they know
they can get funding. Third, the brokers
and intermediaries desire to force the
professionals and developers to prepare
Edward C. Beshara
documents that they can easily market
to the investors who fund the projects.
And, of course, the investors desire U.S. permanent residency
and a viable exit strategy from the project.
Direct project
The EB-5 compliant direct project consists of a
comprehensive business plan, including verifiable details
of the business activity—showing how the EB-5 funds
will be committed and lead to the creation of jobs.
USCIS will first adjudicate the EB-5 compliance at
the time of adjudicating the I-526 petition prepared
and filed by the investor. Because non-compliance
will cause the investor’s petition to be denied, it is
important that the investor be sure that all aspects
of the project are in compliance before filing
their petition to avoid wasting time and money.
USCIS will again consider compliance with EB-5
regulations at the I-829 stage, when the investor files
to remove conditions to his permanent residency.
While they may each focus on their individual priorities, the
reality is that all the blind mice play an equally important role
in preparing an EB-5 compliant and marketable project; therefore, the goal for a successful EB-5 project is the coordination of
these efforts. They will coordinate first to combine compliance
and marketability, then to receive funding as quickly as possible,
all in the hopes of avoiding denials.
Regional center project
The EB-5 project associated with an existing regional
center will be deemed compliant through inclusion of
a comprehensive business plan, an economic report
showing the creation of indirect jobs, and the security
offering documents for the investors to review and sign.1
If there is non-compliance with securities regulations,
the SEC will not hesitate to bring legal action against
the project. On this basis, it is imperative that an
experienced securities attorney with EB-5 expertise
be retained by the EB-5 project for strict guidance.
A compliant EB-5 project
Key in establishing an EB-5 project are the professional team
members—or mouse one—consisting of the immigration attorney, economist, business plan writer, marketing analyst, and
securities attorney. These players all understand the technical
rules and policies of what makes an EB-5 project compliant. In
fact, the team (who should have the appropriate EB-5 expertise)
will know how to prepare the documents so that they will be
approved by USCIS.
A textbook EB-5-compliant project is supported by documents proving business activity and demonstrating that the
investment funds will lead to the required job creation. This is
important because, as we will determine, the project needs to be
more than compliant to be successful.
An EB-5 project, whether it is a direct EB-5 project or one
associated with a regional center, must be compliant with the
EB-5 rules and regulations as put forth by USCIS. The laws
and rules state the requirements for a compliant EB-5 project;
however, these laws and regulations are interpreted by the
USCIS officials in the form of written policy memoranda,
written requests for evidence (RFEs), and/or through approval