EB-5 Regional Centers and Securities Law

EB-5 investors are becoming increasingly aware of the Securities and Exchange Commission (SEC),  the top U.S. securities regulator, and its involvement in the EB-5 Visa Program. As a result, investors are anxious to learn the connection between the nation’s financial watchdog and the immigration program.  Created by the Securities Act of 1934, the SEC was designed to protect investors from fraud by enforcing securities laws requiring complete disclosure of information and regulating the people involved in the securities transactions.  Attorneys handling EB-5 Visa clients should be prepared to provide a competent explanation on both immigration and securities issues involved in the EB-5 process.  In the past, securities law was considered a specialty area of law reserved for large firms in cities such as New York.  However, at present, to practice as an EB-5 attorney, it is important to have at least a minimum understanding of the U.S. securities law.

The SEC defines a security as any stock, bond, debenture, note, transferable share, investment contract or certificate of interest in a profit-sharing agreement. In general, all securities offered in the United States must be registered with the SEC and comply with the regulations, or be eligible to claim an exemption from registration. A typical EB-5 Regional Center Project is structured in the form of a Limited Partnership and according to SEC, interest in the partnership is an investment contract and therefore, a security . To further elaborate on the term “investment contract”, the Supreme Court of the United States determined the definition in the landmark case of SEC v. Howey.

According to the Supreme Court, an investment contract is any transaction in which (1) a person invests money (2) in a common enterprise (3) is led to expect profits and (4) solely from the efforts of others.  The four elements combined  are commonly referred to as the Howey Test and are used to determine whether an instrument qualifies an investment contract. 

The first element is interpreted as the investor not purchasing a consumable commodity or service, rather, making an actual bona fide at risk investment.  The second element of commonality is determined by multiple investors having interrelated interest in a common scheme (it is sufficient if a single investor has a common interest).  The third element of expectation of profits is interpreted as expected returns must come from the earnings of the enterprise.  Lastly, earnings must come from the efforts of others, this is broadly construed to mean that the efforts of managers must predominate over the passive investor.

EB-5 Regional Center Projects structured as a Limited Partnership meet all 4 elements of the Howey Test and are therefore defined as an “investment contract”. Foreign investors (1) invest at minimum $500,000 (2) into a common enterprise, Limited Partnership, (3) with an expectation of returns on the investment and (4) through the efforts of the managing partner. 

Simply meeting the definition of a security is just the beginning of the complex regulations of U.S. securities. In our next blog, we will elaborate on the scope of the regulatory authority of the EB-5 Visa Program by SEC. 

For more information on the EB-5 Visa and SEC compliance, please contact our office today.

Barella Law | +1 (239) 228-2895 | kbarella@barellalaw.com | www.barellalaw.com

The Information contained in this blog is for information purposes only, and should not be considered legal advice for any individual case or situation.  The information provided is not a substitute for consultation with an attorney.  No attorney/client relationship is created by the information contained herein.

The EB-5 Misconception

Does the EB-5 program allow potential immigrants to “cut” to the front of the immigration line? The answer is a definitive, no.  Believed by many to be a shortcut to US permanent residency, the EB-5 program is not a line-cutting program.  In fact, the US Government sets aside each year, 10,000 visas for EB-5 investors.  Of the 10,000 visas, 3,000 are set aside for investments made in Target Employment Areas (TEA).  

As the government specifically sets these visas aside, it’s not possible for EB-5 investors to steal visas from other immigrants or jump to the front of the line.  Compared to other countries around the world that utilize a point system for immigration, the United States does not have such a program.  Unless a potential immigrant has a job or family member available to sponsor them, there are limited options for obtaining US Permanent Residency.  

The EB-5 Visa Program allows these immigrants with limited options to legally move to the US.  This misconception that EB-5 investors “buy” their way into the US at the expense of immigrants of lesser means is outdated and simply incorrect.  The government implements visa quotas, which allow each visa category a limited number of spaces.  

The benefits of the EB-5 program provide immigrants with a chance to live, work and study in the US, with the added benefit of their investment contribution leading to the growth of the US economy.  

Barella Law | +1 (239) 228-2895 | kbarella@barellalaw.com | www.barellalaw.com

The Information contained in this blog is for information purposes only, and should not be considered legal advice for any individual case or situation.  The information provided is not a substitute for consultation with an attorney.  No attorney/client relationship is created by the information contained herein.

Lawful Source of Funds for EB-5

Perhaps the most important aspect of any EB-5 Petition is the Lawful Source of Funds requirement by USCIS.  For apparent reasons, USCIS must ensure that every petitioner has acquired the funds to make their EB-5 investment through lawful means.

Given the different accounting and taxing principles around the world, this sometimes proves to be difficult to trace.  Through no fault of the attorney or investor, some countries simply do not practice the standard of record keeping required by USCIS.  This hurdle may be overcome by providing affidavits and other evidence and documentation to get around the deficiency.

Communication between the client and the attorney is most crucial during this stage of the EB-5 process.  An attorney may only perform his/her job when the client has made a complete disclosure of their source of funds.  USCIS needs to see the money traced back to its origin.

For example, if an investor claims to have gained the funds for the investment through the sale of a property, he must show more than just the bill of sale for that property.  USCIS will want to see that he was in fact the owner of the property, and owned it for a reasonable time.  This may be proved by the investor providing his original purchase agreement, or other evidence to prove ownership.

Although the EB-5 Investment is $500,000 for Regional Center Projects located in target employment areas, there are other costs associated with the investment.  Generally an administration fee is assessed to the Petitioner.  Although an attorney should not have to account for the administration fee in the Lawful Source of Funds, the trend among EB-5 attorneys has been to provide documentation accounting for that money. The last thing an attorney wants is to give USCIS an excuse to issue a Request for Evidence (RFE).

Barella Law | +1 (239) 228-2895 | kbarella@barellalaw.com | www.barellalaw.com

The Information contained in this blog is for information purposes only, and should not be considered legal advice for any individual case or situation.  The information provided is not a substitute for consultation with an attorney.  No attorney/client relationship is created by the information contained herein.

Business Opportunities for the Québécois in Sunny Florida

By Anna Barella |Choice Investments|  www.adviseusa.com

Earlier this week the team at Choice Investments attended a business-networking event hosted by the Québec-Florida Chamber of Commerce.  At the event, we met local business owners originally from Québec, Canada now doing business in Florida, and in some cases those who still operate a business back home. The Québec – Florida Chamber of Commerce offers local and Québec businesses a unique ability to grow their business both in Florida and Québec.  

Each year, Florida welcomes over 800,000 snowbirds from Canada, and nearly a quarter of them hail from the Province of Québec. Every winter they typically spend anywhere between one and six months enjoying Florida’s beaches, shopping, dining and great weather.   Many also invest in real estate, both residential and commercial properties. 

Last year alone, Canadians contributed over $4 billion to Florida’s economy. Many choose to legally reside permanently in Florida, either by immigrating or opting for non-immigrant status such as the TN or E-2 visa. Should the US Government pass the Immigration Reform bill, many Canadians will be allowed to stay in the US for up to eight months out of the year. 

The EB-5 Immigrant Investor Visa remains popular among Canadians wishing to permanently immigrate to the United States.  By becoming a US permanent resident, the investor is able to take full advantage of business opportunities in the US and back in their native Canada.  We saw first hand the success of Quebeckers creating a cross-border life for them self.  Ultimately both the Province of Québec and the State of Florida benefit economically from entrepreneurial endeavors of the Québécois.

The EB-5 Visa: An Increasing Contributor to the Growth of the US Economy

The EB-5 Visa Program has a reputation of being a cash for green card business.  Some view it as a system where wealthy individuals essentially buy their way into the United States.  However, this misconception of the EB-5 program is inaccurate and has often led to negative press regarding the visa.

While it is true that foreign nationals who invest through the EB-5 visa must furnish at minimum around $550,000 ($500,000 investment plus regional center administration fees and legal fees), not all of the investors come from extreme wealth.  Many investors work hard to save the money over years, take out a loan (secured on assets) or inherit the money from family.  These investors make sacrifices in their lives because they still believe in the “American Dream,” and understand that this country still has much to offer.

The EB-5 Visa Program is beneficial to both the foreign investor and the US economy.  Apart from creating ten jobs for US Citizens or Permanent Residents (A requirement for obtaining the EB-5 visa), these foreign nationals invest in real estate, contribute to the local economy, and enroll their children in university programs.  Compared to other paths of obtaining permanent residency, the EB-5 visa comes with positive advantages for US citizens and our economy.

A growing trend among potential EB-5 candidates is their discovery of the program through their student child.  F-1 Student Visas are on the rise, and today more than ever, foreign students are coming to the US to take advantage of our educational programs.  Often, when the student is finished studying their program they have no legal status to remain in the United States.  Unless they secure a job that is willing to sponsor them, they must eventually return to their home country.

Many students are doing their own research on the EB-5 Program, and encouraging their parents to make the investment on their behalf.  It is important to note that unmarried children under the age of 21 may be included on their parents’ petition.  For children 21 years and older, they must file their own EB-5 petition.

Barella Law | +1 (239) 228-2895 | kbarella@barellalaw.com | www.barellalaw.com

The Information contained in this blog is for information purposes only, and should not be considered legal advice for any individual case or situation.  The information provided is not a substitute for consultation with an attorney.  No attorney/client relationship is created by the information contained herein.

My EB-5 Visa Petition Has Been Approved...Now What?

Next steps in the EB-5 Visa process

Waiting for one’s EB-5 Visa petition to be approved by USCIS can be a stressful time in an Immigrant Investor’s life.  Your future is uncertain and placed in the hands of the US government.  However, when you finally do receive that call from your attorney informing you that your petition has been approved, you realize it was worth the wait.  You are now one-step closer to permanent residency in the US, and eventually US citizenship.  But what happens next?  What does an I-526 Approval Notice entail?

Once your EB-5 Visa petition has been approved, your attorney must either 1) adjust your status, or 2) initiate consular processing.  Which path your attorney takes is determined by your current location.  

By far, the easier and more convenient option is to adjust status.  However, an attorney may only adjust an Immigrant Investor’s status if the client is present in the United State at the time of the EB-5 approval and able to remain lawfully in the US during the adjustment of status filing.

For adjustment of status, timing is key.  For example, immigrant investors who are presently residing in the US on an F-1 Student Visa may adjust their status upon approval of their I-526 Petition.

The more common way for investors to complete their EB-5 process is to have the attorney initiate consular processing.  In these instances the investor is currently residing in their home country (or another country abroad) and is not present in the US at the time of their I-526 approval.

When an attorney begins consular processing for a client it originates with the National Visa Center, or NVC.  During this process the investor will be required to provide certain original documents for the attorney to present to the NVC.  After the attorney has completed their work, an appointment will be scheduled for the investor at their designated US embassy or consulate.

For more information on the EB-5 process contact our office today.

Barella Law | +1 (239) 228-2895 | kbarella@barellalaw.com | www.barellalaw.com

The Information contained in this blog is for information purposes only, and should not be considered legal advice for any individual case or situation.  The information provided is not a substitute for consultation with an attorney.  No attorney/client relationship is created by the information contained herein.