IEDC Conference: The Pros and Cons of Becoming and Running an EB-5 Regional Center

Transcription

1 IEDC Conference: The Pros and Cons of Becoming and Running an EB-5 Regional Center October 3, 2012 Steve Yale-Loehr Michael Gibson Rod Crider

2 Overview General overview of the EB-5 program Northeast Ohio Regional Center case example Should you become a Regional Center? Problems in running a Regional Center

3 EB-5 101: The Basics EB-5 category created by Congress in ,000 green cards available each year in this preference Two types of EB-5 cases: Individual and regional centers (RCs) Current annual usage: About 6,000 and growing Conclusion: underused so far

4 Regional Centers (RCs) RC program is technically a pilot program Legislative status of EB-5 RC program: extended through Sept. 30, 2015 More than 225 RCs approved so far 90% of EB-5 investors get green cards through RCs

5 Issues in Applying to Be a Regional Center Types of regional centers: specific v. hypothetical projects; equity v. loan models; private v. public sponsors How to get designated as a regional center: costs, time frame Marketing concerns Timing of job creation in large projects; construction job issues Regional center amendments; project preapprovals Dealing with ever-changing USCIS interpretations and delays

6 Securities Law: Centers & Finders Any U.S. person or firm associated with the purchase or sale of a U.S. security must be registered to receive success-based compensation Payments made to non-registered persons may result in the offering losing its exempt status Investors may invoke their rights to recission (relief) should there be violations of the offering, fraud, material misrepresentation or omissions by the issuer or their agents, whether or not they were registered

7 Securities Law: Centers & Finders It is common practice in the EB-5 program for Centers and developers to pay non-registered finders compensation for bringing investors & capital into their projects They do this because there have been no sanctions or enforcement by federal and state agencies so far That is about to change with investigations underway by FBI, DOJ, SEC and State regulators into issuer and promoter fundraising activity both here and abroad

8 Securities Law: Centers & Finders Also, there has been virtually no litigation by investors facing removal due to failure of the project to create sufficient jobs to remove conditions or return capital This will change as USCIS scrutinizes project results more closely and developers fail to exit with sufficient value to repay investors their capital contribution. Unhappy investors facing removal and/or loss of principal will hire litigators to sue everyone involved in the raise

9 Securities Law: Future Predictions There will be increased investor litigation as projects fail to achieve successful I-829 removal of conditional status and more fail to repay principal to investors EDCs/EDOs/PPPs could be responsible for repayment of investment, fines & penalties for failing to adequately audit and supervise the roles of the fundraisers and consultants they have contracted to raise capital for their development projects (deep pockets) This is a lucrative field for litigators because of the size of the capital raise and the lack of regulation & oversight

10 Securities Law: Future Predictions Increased scrutiny by U.S. federal & state agencies, working with foreign regulators, supervising the fundraising practices of center/developers finders promoters & consultants domestic & offshore activities Regulators & litigators will look to see if any activity violated the Reg D / S exemption provisions, there was any evidence of fraud, misrepresentation or materially omitting facts necessary to make an informed investment decision by the center or its agents

11 Regional Center (RC) Investments (cont d) Main difference: Job creation direct vs. indirect RC does not automatically mean $500,000 RC project has to be in targeted employment area (TEA) to accept $500,000 investments Main issues for investor: source of funds; safety of project; when they will get their money back Main issues for RC: approval of business model and jobs; securities law compliance; reputation

12 Requests for Evidence (RFEs) in Regional Center Applications Common requests for evidence include: Economic analysis with complete explanation of job creation Amount and source of funds committed to the regional center Two business plans: regional center and proposed new commercial enterprise Detailed plan to administer, oversee, and manage the regional center More details about the proposed first project

13 Northeast Ohio Regional Center Application process & rationale Originally intended to be a single purpose RC Cost Time Complexity Ambiguity

14 Northeast Ohio Regional Center Approved in June, 2009 Serve 16 contiguous counties in Northeast Ohio Target Industries Bioscience - including agribusiness, biotechnology Energy - including alternative fuels, energy conservation and pollution reduction. Revitalization - including commercial development, renovation of industrial facilities Information technology - including process improvements and advanced manufacturing

15 Northeast Ohio Regional Center Initial Challenges Getting local and regional buy-in Figuring out which experts to use Identifying and qualifying projects

16 Northeast Ohio Regional Center Post-Approval - compliance issues - operational issues - finding investors - finding projects

17 Other Examples of RCs Philadelphia: Works with PIDC State of Vermont State of Hawaii

18 We Received RC Designation; Now What? I can now rest assured that USCIS will approve all my projects! Issues I ve specifically cleared with USCIS before designation won t rise again, right?

19 Issues After RC Approval Difficulties with documents TEA letters for specific projects Project-specific business plans Economic reports realistic vs. projected job creation choosing a model: direct vs. expenditure Corporate structure

20 Regional Center Operation How do I drive this thing? Planning Project pre-approval procedure Deal flow Marketing Administrative structure USCIS reporting requirements

21 Finding Investors Where to look Competition with other approved RCs Verifying investors source of funds Securities law requirements: Regs D, S

22 Job Creation Issues 10 full-time jobs for US workers Time to create jobs: 2.5 years What if shortage of direct jobs? Issues with indirect job creation I-9 issues Tracking issues for I-829 Proving direct job creation: More than I-9 form?

23 Legal Issues/Pitfalls Risk of loss of money Investment at risk Bankruptcy Risk of denial I-526 and I-829 Regional Center risks Insufficient investors Project delayed or aborted Regional center decertified Securities law violations Implications for RC

24 For More Information: Steve Yale-Loehr Miller Mayer, LLP x investors.html Michael Gibson US Advisors Rod Crider Wayne Economic Development Council

25 Questions?