Companies marketing financial services often tout their experience, previous results and returns paid to investors. For EB-5 regional centers, however, such statements in marketing materials can become litigation exhibits or the center of an enforcement action by the Securities and Exchange Commission.
Consulting with an experienced EB-5 attorney about all marketing materials relating to the program is wise, notes EB-5 research and consulting firm EB-5 Diligence. Statements about previous results and principal paid back to investors are among the most problematic information in EB-5 marketing materials due to stringent program prohibitions.
Measuring Results Poses Challenges
Attempting to measure performance of EB-5 investments is difficult, in part because the EB-5 program is not designed for monetary return. Instead, the program aims for return of principal, along with a green card. In addition, no singular authority exists for measuring and verifying successful investments.
Although regional centers may not issue specific investment offerings, they still may have liability in promoting previous offerings and touting the amount of funds raised from previous projects. In the eyes of the law, regional centers may act as a manager of investment vehicles similar to an investment manager for a hedge fund or mutual fund.
Regional centers should be wary of simply passing on marketing materials created by others. Instead, they should practice due diligence and have an experienced EB-5 attorney ensure that materials comply with all program guidelines and prohibitions.
Best Practices for Avoiding Liability
Invest in the USA, the not-for-profit trade association for the EB-5 Regional Center Program, advises that all IIUSA members and issuers consult an experienced EB-5 attorney when working with intermediaries assisting with the marketing and sale of EB-5 securities. In addition, the group offers several best practices related to marketing for regional centers:
- Require that intermediaries use only marketing materials that have been prepared by securities issuers or require the right to approve any materials in advance.
- Approve third parties who will translate marketing materials into foreign languages.
- Understand the role of foreign migration agents, who often play a major part in marketing EB-5 investments internationally.
- Understand that some countries regulate immigration consulting, including marketing EB-5 investments, and require specific licensing.
To ensure that marketing materials are accurate and comply with all regulations, consult an experienced EB-5 attorney. Contact David Hirson & Partners, LLP, at (949) 383-5358.