SEPTEMBER 17, 2012 AREAA NEW JERSEY CHAPTER MEETING LAW OFFICES OF JULIA PARK, LLC Introduction to...

SEPTEMBER 17, 2012AREAA NEW JERSEY CHAPTER MEETING

LAW OFFICES OF JULIA PARK, LLC

Introduction to EB-5 Financing

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www.juliaparklaw.com

Green Card Waiting Times

Family-based petitions Marriage: 6 months* Child over 21: 6 to 9 years Brother or sister: 10 years

Employment-based petitions EB-1 (extraordinary ability; multinational exec): 6 months EB-2 (higher degree): 1 – 2 years (add 4-5 years if from

China or India) EB-3 (college degree): 7 – 9 years EB-3 (skilled worker): 8 – 11 years EB-4 (religious workers): 6 months

* Approximate time frame. DOS releases a “visa bulletin” every month. Often front page news for ethnic newspapers.


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What is the EB-5 Visa?

The EB-5 visa category, introduced in 1990, allows a foreign national to invest $1 million in a “new commercial enterprise” that will benefit the U.S. economy and create at least “10 full time jobs”.

In 1992, the Regional Center Pilot Program allowed the required investment to be reduced to $500,000 if made in a “rural area” or a “targeted employment area (TEA)”.

Misconception: Regional Center (RC) = $500,000 and Self-investment = $1 million LOCATION of the investment determines the

investment amount.

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Why the recent boom?


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Quite popular in the early 90’s but legacy INS implemented stringent requirements in 1998, even retroactively changing the rules.

2003 and onward, the EB-5 slowly regained ground with the current recession highlighting the attractiveness of EB-5 capital as an alternative funding source.

Canada recently doubled the investment amount for its investment visa program making EB-5s more attractive.

EB-5 Regional Centers (1)

Regional Center Pilot Program began in 1993; extended very 3 years; just extended by Senate last week!

Government designated economic entities, either public or private, that promotes economic growth.

Virtually all RC projects are located in Rural Areas or TEAs.

Currently more than 90% of EB-5 applications are made through RCs.

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EB-5 Regional Centers (2)

Currently more than 220 approved RCs; many more pending approval. Note that not all RCs currently have projects.

Lots of competition among RCs to attract investors: More options for investors.

No centralized location to check current projects.


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Examples of RC Projects (1)

Solar Power Project (California) $2.2 billion total project cost

Government guaranteed loans: $1.6 billion Equity partner I: $168 million Equity partner II: $300 million Equity partner III: $130 million (of which $90 million will

be EB-5 Loans)

Upgrade of regional mass transit payment system (Pennsylvania) $207 million total cost

Equity: $32 million EB-5 Financing: $175 million (in 3 separate tranches)


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Brooklyn Navy Yard industrial park (New York) $ 141 million total cost

Government funding: $81 million EB-5 Financing: $60 million

Addition of restaurant and bar to W Hotel (Los Angeles) $14 million EB-5 Financing Total cost?


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Construction of Marriott (Los Angeles) $118 million EB-5 Equity Financing

Medical center in FlushingHotel in Times SquareHotel in lower ManhattanGold mine Turkey farmDairy farm


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EB-5 Investment Structure (1)

EB-5 investment must be “at-risk” equity investments – debt does not qualify

Most Regional Center investments are structured as debt funds in which the foreign investor takes an equity position. These funds then loan the pooled funds to the borrower.


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EB-5 Investment Structure (2)


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Regional Center

InvestorRC Fund (Lender)

Developer (Borrower)

A B

A: Invest $500KB: Lend pooled investment (Generally 5-year collateralized term loan)C: Interest payment generally 1%D: Interest payment generally 5% (no prepayment)

C D

Regional Center Job Creation

USCIS allows Regional Center projects to count both direct and indirect jobs.

Economic models such as IMPLAN and RIMS II are used to project anticipated job creation based on revenue or expenditure.

The borrower must expend funds (in an expenditure model) according to the submitted business plan. Funds cannot be diverted to non-job creating activities or the investor will not get a permanent visa after 2 years.

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The Visa Process (1)


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The Visa Process (2)


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The $500,000 Investment: TEAs and Rural Areas

Rural Area (1) Not located within any standard metropolitan statistical area (MSA) AND

(2) Not located within city/town with a population of 20,000 or more based on the most recent census.

83% of USA = MSA: Virtually the entire states or Maryland, Massachusetts, Rhode Island and New Jersey is disqualified.

Bills being introduced to eliminate MSA prong.

TEAs (1) The area (MSA or county) has experienced an average

unemployment rate of 150% or more of the national average (based on Department of Labor statistics)OR(2) Letter from State authority (ex. NY EDA) certifying that the particular area has been designated a high unemployment area.

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Busy Two Years for the RC

If Regional Center project is not successful investors risk deportation Failure to become fully subscribed and project never happens Unexpected economic downturn

Job Creation target not reached: 10 jobs must be created within 2.5 years of the I-526 approval (June 2009 memo), if not must be able to show that the jobs can be created within a “reasonable period of time”.

Construction jobs will count only if they last at least 2 years. What about big scale projects that take longer than 2.5 years? (Discretion is there

but too early to say.)

A “material” change in the business plan: December 2009 memo states that a NEW (not AMENDED) I-526 petition is required: no remedies for aged-out children or ex-spouses.

Inconsistent with other visas; no law or Regulations requiring this; potential for litigation

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RC EB-5s vs. Direct EB-5s

Similar structure and rules but can only count direct jobs so size of capital raise is smaller

Difficult to rely on existing migration consultant infrastructure due to small economies of scale

Depending on the project, investor could have more control over ultimate job creation

USCIS currently fixated on job creation methodologies which is causing delays, so direct EB-5s seeing a slight advantage in processing times


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In Conclusion

EB-5 is a wonderful alternative for relatively wealthy foreigners who have no other ways to obtain greencards.

EB-5s are an attractive source of funding for projects that require investment in otherwise dismal economic times – but competition is fierce.

The investor must clearly understand the importance of due diligence and the risks involved.

The borrower must clearly understand how the funds can be used.

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QUESTIONS?

PLEASE CONNECT WITH ME ON LINKEDIN. (“JULIA YONG-HEE PARK”)

[email protected] FIFTH AVENUE

NEW YORK, NY 10016

Thank you!


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