GIVE ME THE EB-5 FACTS A NO-NONSENSE NEW-YORK

Overview of the EB- Program § Congress created the EB-5 category in 1990 § The Immigrant Investor Pilot Program was created by Section 610 of Public Law 102 -395 October 6, 1992) □ Effective 1993 □ RCs first applied in August of 1993 □ Only 300 visas were initially available for first 5 years □ Focused on exports

The EB-5 Program Had a Bleak Future… § Program almost faded away § Individual petitions were more interesting at that time § Lax oversight by legacy INS § No SOF review § Schemes began to emerge including part loans, promissory notes using US funds § INS became concerned with guaranteed interest payments and redemptions

BOOM- Government Scrutiny § The memos started coming § No APA review § No grandfathering § No stability § All EB-5 cases on hold Dec 1997 § The Tiger Team created-really!

It gets worse… § Team reviewed what was no longer compliant § To cover their tracks the program was then slammed with 4 precedent AAO decisions § We still live with them today and now they even apply to the Regional Center context

It gets better… § Chang vs. the United States (2003) □ No retro on I-829 s where I-526 was approved before precedent decisions § 2000 Amendment □ No more exports required

More Amendments § 2002 □ RCs now must provide a business plan □ Definition of “new” business modified □ Added LP as acceptable entity structure □ Other specifics on pending petitions § 2003 □ Program extended until 2008 □ I-526 RC priority for adjudications

And where we are today § 10, 000 green cards available to foreign nationals each FY § Two options under the program: □ Individual Investment □ Regional Center (RC) Investment § 90 -95% of EB-5 petitions filed through RCs

Historical Usage Fiscal Year Total EB-5 Visas Issued § FY 09 4, 218 § FY 08 1, 360 § FY 07 806 § FY 06 744

Latest Statistics for Approved Regional Centers § Fiscal Year 2007 11 § Fiscal Year 2008 25 § Fiscal Year 2009 72 § Fiscal Year 2010 114 § Fiscal Year 2011 174 § Fiscal Year 2012 194 Source: California Service Center Report Date: April 23 rd, 2012

Latest Statistics I-924 petitions (initial RCs, amendments, pre-approval/ exemplars) § Fiscal Year 2010 Receipts: 152 Approvals: 78 Denials: 41 § Fiscal Year 2011 Receipts: 278 Approvals: 123 Denials 58 § Fiscal Year 2012 1 Q Receipts: 60 Approvals: 14 Denials 22 § Fiscal Year 2012 2 Q Receipts: 54 Approvals: 8 Denials 9 Source: California Service Center Report Date: April 23 rd, 2012

The Latest Stats: I-526 petitions

The Latest Stats: I-829 petitions

Sources of Law/ USCIS Policy § Statute § Regulations § AAO Precedent Decisions § Memorandums § New Hybrid Process of Memos for Public Comment…waiting for Memo 3 § Stakeholder Engagements

Choosing an EB-5 Team § Immigration Lawyer § Economist § EB-5 Business Plan Writer § Securities/Corporate Attorney § Bank/Escrow Agent § Marketing Firm/Commissioned Agent

More Choices to Make § Apply for Regional Center Designation § Have your project adopted § Buy an existing regional center § Pooled individual EB-5 s

Dictionary. com § Business Plan § Geographical area § TEA § Operational Plan § Offering Documents § Economic Report □ Indirect vs. Direct Job creation § Marketing Plan § Escrow Agreement § Project preapproval, shovel ready, exemplar, hypo….

What is a Regional Center? USCIS has stated: “A Regional Center is not merely a defined geographic area but rather is a business entity that coordinates foreign investment within that area in compliance with the EB-5 statutory, regulatory and precedent decision framework”

Purpose of a Regional Center Promote economic growth through: § increased export sales (if any) § improved regional productivity § job creation, and § increased domestic capital investment

What do we need to show USCIS? § operate? § promoted § funded? § positive impact on national or regional economy § verifiable detail of how indirect jobs will be created § Sample offering documents § Marketing plans § Business Plan § Economic Report § Bios of operators § Information of intended raise

What’s a TEA? § TEA is defined as a rural area □ which is either in a § high unemployment area, (calculated as an area with an unemployment rate that is at least 150% of the national average), § or a Rural Area (outside a town of 20, 000) and outside a metropolitan statistical area)

Capital Investment Requirements § Not necessary at I-924 stage but rather when Investor files individual I-526 application § Targeted Employment Area (TEA)= $500, 000 □ In addition to the Regional Center’s Administrative fee of $39, 000 to $70, 000 or more § Outside TEA =$1 million

Designation of a Geographic Activity § Does it have to be Contiguous? § More than one counties or a whole state § Overlapping-more than one Regional Center in the same area § Yes you can establish more than one Regional Center § Jurisdiction can be expanded by filing an amendment

Job Creation is Key Direct § Actual identifiable jobs § located within the new commercial enterprise Indirect § Those shown to be created collaterally § Or as a result of the capital invested in the NCE

What Else and Why? § Number of indirect jobs created through an EB-5 investor’s capital investment is based upon a business plan and a detailed economic analysis § Evaluated and approved by USCIS during the approval and designation of a regional center

Timing of Regional Center Process § File I-924, Regional Center Designation Application, with USCIS □ Approximate processing time 4 to 10 months (expedite option was expected in Spring 2012 but no more…) § Option to file exemplar I-526 for a specific project § Regional Center may begin marketing projects once USCIS approves the I-924 § Investors file EB-5 petitions (Form I-526) □ Approximate processing time 5 to 8 months

Timing- When Will I Be Able to Use the EB 5 $$$? § Investor must invest 100% (usually $500, 000) before I-526 filed § Money can go □ To project immediately □ To escrow § Released when investor’s I-526 is approved § Considerations for voluntary or mandatory withdrawal § So How Long Did That Take? □ RC designation – 6 -12 Months I-526 approval – 7 -8 Months □ Total – 13 – 20 months □ excluding time to prepare and submit RC designation or time it takes to find investors □ Processing times are fluid

Regional Center Costs § Professional fees § Government filing fees § Regional center recoupment of costs through charges to investors § Cost of Capital § In-House Counsel/ Team § Overseas Team § Marketing § Insurance

Enhancements § Possible Premium processing □ shovel ready projects § Specialized Intake Teams □ Economist □ Business lawyers □ EIR § Expert Decision Board □ Open communication □ Economist, adjudicators and supported by USCIS counsel

Dealing with USCIS § Unpredictable § Hard to Navigate § Rules of the game are not always written in the book § History repeats itself § The more things change the more they stay the same § Take this process seriously and be successful