Posts

[DHP Client Alert] USCIS Issues New Guidance Clarifying Acceptable Redeployment of EB-5 Funds

On July 24, 2020, USCIS issued a new policy memo clarifying its guidance on acceptable deployment and redeployment of EB-5 capital. This new guidance is effective immediately and affects all pending I-526 and I-829 petitions. Below we discuss USCIS new restrictive redeployment policies and how they impact the industry.

USCIS’ New Restrictive Redeployment Requirements

Previously, in its initial redeployment policy memo issued on June 14, 2017, USCIS offered vague guidance that any redeployment of EB-5 capital would generally be acceptable only if (1) the business plan was substantially completed, (2) the funds were reinvested into activities consistent with the NCE’s purpose, and (3) the funds were redeployed within a “commercially reasonable period of time.”

Now, USCIS’ new policy memo clarifies that any redeployment of EB-5 capital must be tied to the purpose and scope of its accompanying NCE and Regional Center. This effectively greatly limits the range of acceptable redeployment activities and clarifies several issues, including:

  • Role of the NCE and RC: USCIS confirms that any redeployment of EB-5 capital must be consistent with the original purpose of the NCE and within the geographic umbrella of the Regional Center. This effectively greatly limits both the range and scope of acceptable redeployment activities since its inextricably tied to the NCE and RC. Moreover, both the NCE and RC must continue operating and remain in good standing during this entire period. The dissolution or termination of either the NCE/RC would also cause the denial of the underlying I-526/I-829 petitions. 
  • Redeployment must be through NCE: Any redeployment of EB-5 capital must be through the same NCE. Note that USCIS does not clarify if this applies only if the EB-5 funds are actually repaid to the NCE (versus being repaid to a SPE/SPV that was created to disburse or lend the EB-5 funds to the JCE). 
  • Cannot Redeploy into “Financial Instruments”: EB-5 capital cannot be deployed into financial instruments, including municipal bonds or securities. USCIS’ logic is that these activities are primarily financial in nature and not consistent with the requirement that NCEs must be engaged in “commercial or business activity.”
  • Commercially Reasonable Period of Time: Confirms that 12 months would generally be considered a commercially reasonable period of time for redeployment of EB-5 capital. USCIS would also be open to accepting a longer period of time depending on the specific facts or circumstances of a case.

What our Clients Need to Know

Since USCIS’ initial memo on redeployment, EB-5 stakeholders have repeatedly requested USCIS provide further guidance clarifying acceptable activities, scope, and timing of investments. While the new memo provides much greater clarity, it also ushers in a new set of restrictive requirements overnight that will leave many EB-5 stakeholders scrambling to assess the eligibility of their current plans as well as any accompanying risks and exposure.  All Regional Centers, issuers, and EB-5 stakeholders should immediately review their current redeployment plans with EB-5 counsel to ensure that they are still in compliance. This is especially critical because the policy memo is effective immediately and extends to all pending EB-5 petitions.

Given that redeployment must now be tied to both the NCE and Regional Center, it is advisable to review the NCE’s limited partnership/operating agreement and offering documents to ensure your redeployment plans align with the NCE’s purpose. Both EB-5 securities counsel will be necessary to navigate through the maze of corporate, securities, and immigration issues. A preliminary assessment may be needed to analyze whether any actions need to be taken to revise your redeployment plans, including amending the NCE’s organizational documents, PPM, or filing an I-924 to expand your Regional Center’s geographic region. For example, clients who are immediately at-risk include those who have structured portfolios to invest EB-5 capital and those who have redeployed into municipal bonds must now consider the ramifications on their investor’s pending petitions. Finally, any remedial measures must be approached with caution since the specter of material change looms over any changes to the NCE’s organizational documents, and should only be done after careful consultation with EB-5 counsel.

Our firm has structured and advised on numerous EB-5 redeployment plans and will be working closely with our clients to review and advise them on their current redeployment plans. We will continue to monitor this issue and provide updates as we analyze the impact on the industry. Contact us today to discuss your EB-5 questions with our team of EB-5 experts.

Positive impacts of the EB-5 Immigrant Investor Program on the U.S. economy and U.S. workers

When Congress authorized the EB-5 investor visa program in 1990, the idea was to attract capital investments to the U.S. economy while encouraging foreign investors to create employment and jobs for U.S. workers. The program’s highest priority is to facilitate the creation of new jobs for U.S. workers and saving jobs of U.S. workers in failing businesses. All of these jobs benefit the U.S. economy at no expense to taxpayers. Since 1990 and up through 2019, EB-5 investors and their immediate family members have been allowed to obtain lawful permanent resident (LPR) status by investing $1 million anywhere in the U.S. or $500,000 in underserved geographical areas known as Targeted Employment Areas (TEAs). The end of 2019 saw the minimum investment amount increase to $1.8 million anywhere or $900,000 in TEAs.

Numbers speak

According to various studies, the EB-5 program has had a substantial, positive impact on the U.S. economy. Several statistics presented by the Wall Street Journal (WSJ) and other sources underscore the high value of EB-5 visas to the American economy overall:

  • According to the U.S. Department of Commerce, the EB-5 program brought in $5.8 billion for fiscal years 2012-13 and created an estimated 174,000 U.S. jobs.
  • The WSJ cited another study that concluded that EB-5 investments had brought $20 billion to the U.S. economy since 2008.
  • An assessment jointly released in 2019 by two think tank organizations, the EB5 Investment Coalition and Invest in the USA, asserted that EB-5 investors brought a total of $10.98 billion of capital investment to projects throughout the nation in the years 2014 and 2015 alone that supported more than 355,000 U.S. jobs.

Winds of change?

Recently, various political and economic trends have tightened requirements for EB-5 visa investors, most noticeably new regulations in 2019 that increased the investment amount to $1.8 million or $900,000 in TEAs. However, industrial voices and bipartisan efforts in Congress continue to encourage preservation and improvements to the program.

Mutual benefits

The influx of capital has supported various industrial sectors and brought financial relief to certain geographical areas, such as rural communities. Analysts examining economic trends have consistently weighed in on the effectiveness of the program. They have highlighted its strengthening effects on specific aspects of the U.S. economy, such as real estate development. Additionally, EB-5 investors contribute far more than just the investment amount towards the U.S. economy.  Besides the investment and employment creation, EB-5 investors often invest substantial cash amounts into their residences and other real estate projects. Some EB-5 investors even create separate businesses exporting U.S. made goods.

It seems clear that prospective EB-5 investors, U.S. developers in need of capital, U.S. infrastructure projects, and U.S. workers who benefit from more jobs all have strong interests in the ongoing viability of the EB-5 investment visa program.

If you have questions about the EB-5 program, our team of experienced EB-5 and business immigration attorneys are available for a consult. Contact us today for more information.

TEA Designation changes for EB-5 program

New Rules for Targeted Employment Area (TEA) Designations in the EB-5 Immigrant Investor Program

Targeted Employment Area (TEA) Designations for EB-5 Projects [infographic]

On July 24, 2019, the Department of Homeland Security published the final rule for The EB-5 Immigrant Investor Program Modernization. The final rule for The EB-5 Immigrant Investor Program Modernization went into effect on November 21, 2019.

However, this new rule still leaves some uncertainty and risks, particularly with Targeted Employment Area (TEA) designations. TEA designations are important because a project that is designated as being in a TEA can accept EB-5 investors at the lower investment amount of $900,000.

 

Changes to TEA Designations EB-5 Program

EB-5 Immigrant Investor Program: New Regulations [infographic]

On November 21, 2019,  new regulations went into effect, dramatically altering the EB-5 Immigrant Investor Program. Here’s what you need to know:

 

New regulations for EB-5 Immigrant Investor Program

Questions we're asking about EB-5 right now

EB-5 Legislative Update: Mid-September

This post addresses 3 ideas that are currently being discussed in the EB-5 world:

  • Will President Trump do something to “save” the EB-5 program?
  • Will the new EB-5 regulations be repealed by Congress?
  • Will Congress finally enact new EB-5 legislation?

These are all good questions to consider, but the simple answer to all of them is: No. Let’s take a look at each question in a little more detail:

1. Will President Trump do something to “save” the EB-5 program?

Many people look at Trump’s interests and track record with real estate development and believe that he understands and supports real estate deals across the U.S. Trump is not in a position to “save” the EB-5 program as President. Not even his use of executive orders can change the Administrative Procedure Act (APA). The APA is the government’s rules on how to change its own rules. The APA is a set process that takes time in order for any change to be made.

2. Will the new EB-5 regulations be repealed by Congress?

Senator Rand Paul from Kentucky has been trying to get Congress to use the Congressional Review Act (CRA) to overturn or stop the new EB-5 regulations. While there have been many attempts to use the CRA since 1996, there have only been 3 times when the CRA was successfully used to overturn new government regulations. 3 CRA overturns in 23 years is not a very high percentage of overturns.

3. Will Congress finally enact new EB-5 legislation?

While the EB-5 industry continues its efforts to lobby Congress for new EB-5 legislation, there is no real result in sight yet from these efforts. Everyone can see how divided the U.S. Congress is, especially when it comes to immigration issues, including EB-5. With no consensus in Congress, there can be no legislative changes for the EB-5 program either.

The conclusion from all of this is:

  • Be prepared for a Continuing Resolution (CR) to most likely be passed by Congress which allows the EB-5 Regional Center Program to continue unchanged from September 30, 2019 to November 21, 2019; and
  • Be prepared for Congress to pass another CR in order for the EB-5 Regional Center program to continue after November 21, 2019.
    • Note: Direct EB-5 investments and petitions can continue without needing any CR from Congress. Direct EB-5 investments will have to follow the new EB-5 regulations after November 21, 2019 though.
  • Be prepared for the new EB-5 regulations which will come into effect on November 21, 2019.

Contact us with your questions and to speak with one of our immigration attorneys to discuss the best immigration pathway for you and your family.

Tel: +1-949-383-5358                            Web: www.Hirson.com                                          Email: info@hirson.com

EB-5 attorneys help family receive travel ban waivers and approval to enter the U.S.

David Hirson & Partners Guides Client Through Heightened Vetting Process to Receive Travel Ban Waiver

Earlier this summer, David Hirson & Partners, LLP (“DHP”) successfully helped an EB-5 investor client’s entire family of nine obtain travel ban waivers. These waivers were required in order for the family to be issued immigrant visas and enter the U.S.

Our client received approval of their EB-5 petition back in 2017 and attended their consular interview in Abu Dhabi in 2018. During their interview, the entire family was asked to complete Form DS-5535 (except the minor children under 14). This is an enhanced vetting form that requires the disclosure of the following for each applicant:

All: Past 15 years of: Past 5 years of:
Passport numbers & country of issuance Travel history Telephone numbers
Names birthdates of immediate family members Home addresses Social media usernames/handles
  Employment History Email addresses

After completing the requested forms, this family’s case remained “pending in administrative processing” for a few months, at which point DHP was retained to file a travel ban waiver packet for the family. Our firm compiled and filed the travel ban waiver packet based upon the family’s and investment’s given circumstances.

A travel ban waiver packet is evaluated based on three factors:

(1) entry is of national interest to US (here the EB-5 program);

(2) denying entry would cause undue hardship (here to the family, petitioner, and project); and

(3) entry would not pose a threat to national security or public safety.

Less than six months after DHP submitted the travel ban waiver packet, the consulate emailed the client for continued processing, asking for updated medical exams and passports, along with new DS-260 submissions. The applicants were also required to come to the embassy to retake the oath. The client and family members completed everything that was asked of them and they were all approved to enter the U.S.

All DHP attorneys and staff share a common goal of helping immigrants lawfully navigate the U.S. immigration system. Contact our office to schedule a consultation to see how we can help you and your family’s immigration dreams.

Tel: +1-949-383-5358                            Web: www.Hirson.com                                          Email: info@hirson.com

Major EB-5 Regulations coming in November

DỰ LUẬT MỚI CHO CHƯƠNG TRÌNH ĐẦU TƯ EB-5 HIỆU LỰC TỪ NGÀY 21 THÁNG 11 NĂM 2019

Ngày 24 tháng 7 năm 2019, Cơ Quan Nhập Tịch Và Di Trú Hoa Kỳ (USCIS) đã công bố chính thức dự luật mới cho chương trình đầu tư EB-5. Dự luật mới sẽ bắt đầu có hiệu lực từ ngày 21 tháng 11 năm 2019. Đây là những sự thay đổi cực kỳ quan trọng cho chương trình đầu tư di trú từ những ngày đầu khi quốc hội khai sinh ra chương trình này năm 1990. Chúng tôi sẽ cung cấp thêm nhiều chi tiết cụ thể hơn sau, và những thay đổi quan trọng bao gồm:

1) Tiêu chuẩn mới về số tiền đầu tư: Số tiền đầu tư tối thiểu sẽ là 1 triệu 8 trăm ngàn đô la Mỹ ($1,800,000). Số tiền đầu tư tối thiểu cho những dự án nằm trong khu Trung Tâm Vùng (TEA-Targeted Employment Area) sẽ là chín trăm ngàn đô la Mỹ ($900,000). Tuy nhiên, dự luật mới với những thay đổi giành cho trung tâm vùng sẽ có thể gây khó khăn lớn trong việc thành lập những dự án thoả mãn cho việc thành lập trung tâm vùng.

2) Sửa đổi tiêu chuẩn cho Trung Tâm Vùng: Tiêu chuẩn cho trung tâm vùng sẽ được quyết định bởi USCIS và sẽ có khả năng những tiêu chuẩn sẽ được thu hẹp lại gắt gao hơn do sự xác nhập tổng quát vị trí địa lý của khối kinh tế. Nếu dự án bị giới hạn vào “vùng trực tiếp”, khả năng dự án phải lên một triệu tám $1.8.

3) Quy định mới cho việc duy trì ngày đáo hạn (priority date): Nếu sau này phải nộp hồ sơ I-526 mới, đương đơn sẽ được quyền duy trì ngày đáo hạn bằng ngày hồ sơ I-526 cũ được chấp thuận. Tính linh hoạt này sẽ bảo vệ nhà đầu tư mà đơn I-526 đã được chấp thuận nhưng chưa có khả năng hội tụ đủ điều kiện vì những tình huống ngoài sự kiểm soát của họ (ví dụ trung tâm vùng bị giải tán). Sự linh hoạt này cũng cho phép nhiều sự sáng tạo trong phương pháp kiến tạo phuơng thức đầu tư sau khi nộp hồ sơ mà không gây ảnh hưởng tới ngày đáo hạn.

4) Sự linh hoạt cho đơn I-829: Người thân trong gia đình hưởng lợi ích phát sinh bắt buộc phải tự nộp hồ sơ I-829 nếu bản thân họ không nộp cùng lúc khi đương đơn chính nộp đơn I-829.

Dự luật bắt đầu có hiệu lực từ ngày 21 tháng 11 năm 2019, 120 ngày kể từ ngày đuợc phát hành trên thông cáo của Liên Bang, và việc thông hiểu thông hiểu những điều luật mới ngày rất quan trọng. Nhưng hồ sơ nộp đúng cách trước cột mốc này sẽ được cứu xét dưới dự luật đương thời. (Lưu ý: Xin lưu ý rằng mặc dù 120 ngày cho phép trước khi dự luật mới có hiệu nghiệm, sẽ rất có khả năng chương trình EB-5 sẽ được phê chuẩn tiếp (trước ngày 30 tháng 9 năm 2019) với những đạo luật mới nữa mà có thể sẽ đối nghich với những đạo luật sắp thông qua nêu trên.

120 Ngày kể từ hôm nay, dự luật mới sẽ hiệu nghiệm. Cùng với đội ngũ nhân viên dày dạng kinh nghiệm và quá trình làm việc chặt chẽ với những đối tác kinh doanh, chúng tôi đã hỗ trợ quý thân chủ để nộp hàng ngàn những hồ sơ EB-5 trong vòng hai (2) năm qua, giúp quý thân chủ đi trước những điểm mốc nhạy cảm. Hãy liên hệ với chúng tôi ngay để đảm bảo hồ sơ của quý khách được nộp trước khi dự luật mới có hiệu nghiệm.

Tel: +1-949-383-5358                      Email: info@hirson.com                Website: www.Hirson.com

DHP Partner, Phuong Le, Speaks at IIUSA Conference in Washington, DC

 Attorney Phyong Le speaks at IIUSA Conference in Washington DC

 

 

 

 

 

 

 

 

 

 

 

 

Attorney Phuong Le (left) – Partner at David Hirson & Partners, LLP  speaking at the IIUSA DC Conference May 7, 2019

Photo Credit: IIUSA

Earlier this month, Attorney Phuong Le, Partner at David Hirson & Partners, LLP (“DHP”) spoke at Invest in the USA’s (“IIUSA”) conference in Washington, DC (May 5-7, 2019). He spoke on the panel titled: How to Market to and Find Investors Already in the U.S.: E-2 and EB-5 and Other Visa Backlog Solutions. Alongside his other panel members, Phuong spoke about the E-2 Treaty Investor Visa and other U.S. immigration pathways for those seeking alternatives to the EB-5 visa. Phuong and the team of attorneys at DHP are experts with helping clients find the best immigration pathways for themselves and their family members.

One of the keynote speakers at the IIUSA conference this year was General David Petraeus, who called on all those in attendance to help ensure that everyone who served in the U.S. military are ensured employment opportunities when they leave the service. DHP is proud of and supports our military and veterans.

Of particular interest to DHP’s EB-5 clients, are the updated final action date estimates provided by Mr. Charlie Oppenheim, Chief, Immigrant Visa Control & Reporting Division, U.S. Department of State. EB-5 petitioners from Mainland China and Vietnam continue to face a long wait time. EB-5 applicants from India do not face a final action date yet but will most likely have a final action date starting in July 2019. Mr. Oppenheim also provided his “best case” and “worst case” predictions for EB-5 final action dates for October 2019:


IIUSA’s full report on Mr. Oppenheim’s remarks regarding EB-5 final action dates is available here. If you are an EB-5 investor seeking to understand more about final action dates and what this means for you and your family, we encourage you to contact DHP or your licensed immigration attorney for more information and guidance.

Lastly, DHP is proud of all of the hard work and perseverance put forth by the 2019 winners of the IIUSA Awards for Economic Achievement and those elected to serve in various IIUSA positions. Congratulations to all!

If you have any questions about investment/corporate immigration or other avenues to immigrate to the U.S., contact us to speak with our experienced immigration attorneys.

Recent partner featured in Wall Street Journal

DHP Partner Discusses EB-5 Insights with Wall Street Journal

On March 5, 2019, the Wall Street Journal published an article about the EB-5 investment immigration market in Vietnam. Phuong Le, Partner at David Hirson & Partners, LLP (“DHP”) and An Nguyen, Director of Business Development in Vietnam for DHP, provided timely insights for this article.

The article describes how the EB-5 market has shifted from a China-dominant world to now a Vietnam-dominant world. But, EB-5 stakeholders know that the Vietnamese EB-5 market is already shrinking. Where will the EB-5 industry go next? Without meaningful reforms to the EB-5 world, the EB-5 industry will face a shrinking future.

You can view the article, or contact us for more details about this article.

Contact us directly or call (+1-949-383-5358) to speak with an experienced team of immigration attorneys to discuss which immigration path may best fit you and your family’s immigration plans.