EB and Securities Law Considerations

Transcription

1 EB and Securities Law Considerations Laura Reiff Batya Goodman GREENBERG TRAURIG, LLP ATTORNEYS AT LAW Greenberg Traurig, LLP. All rights reserved.

2 EB-5 Basics > EB- 5 category created in 1990 for foreign nawonals who invest in a new commercial enterprise that will benefit the U.S. economy and create at least 10 full- Wme jobs. > Congress set aside 10,000 immigrant visas annually for investors and their immediate family members. > Immigrant Investor Pilot Program enacted in 1993, providing for regional centers due to sunset on September 30, > Foreign nawonals can get a green card if: Invest $500,000 or $1,000,000 (depending on geographical area); and Investment creates full- Wme jobs for 10 U.S. workers > Green cards condiwonal for two years CondiWons removed if investment sustained and jobs created

3 Regional Center v. Individual EB-5 > Individual EB- 5 PeWWon Investor buys business, starts new business or invests in an exiswng business (formed ader 11/29/1990) Must create 10 direct full- Wme, W- 2 employees who are USCs or LPRs > Regional Center EB- 5 PeWWon Investment into a business associated with a USCIS Approved Regional Center 95% of all applicawons Main advantage Indirect employment counts through the use of an economist report to predict project job creawon.

4 What is a Regional Center? > EnWty that: Focuses on a geographic region Promotes economic growth through increased exports, regional producwvity, domeswc investment, and job creawon > Applies to USCIS for designawon approval > Oversees capital investment projects for alien investment > Markets for investors > Due diligence on investors > Prepares I- 526 package templates

5 Regional Centers cont. > Oversight of I- 526 filings > Tracks infusion of capital into job- creawng enterprise > Monitors compliance with business plan and foundawon facts in economic report > Ongoing administrawon and compliance responsibiliwes > Allocates jobs between investors > Prepares I- 829 package templates > Decides on new projects

6 What is an Indirect Job? > Jobs created in the regional economy as the result of the economic swmulus of the investment > To be demonstrated via reasonable methodologies (economic forecaswng tools): mulwplier tables Feasibility studies Market analyses Other economically or stawswcally valid forecaswng devices

7 Input/Output Models > ForecasWng tools to predict increased employment resulwng from defined changes in the economy: Employment Revenues Expenditures > Types of Models RIMS II, IMPLAN, REDYN

8 Procedure (Matter of Ho) > Ma#er of HO is a 1998 USCIS regulatory case that requires a business plan BUT one that significantly differs from a tradiwonal Business Plan. > A compliant Ma#er of HO Business Plan will avoid unnecessary and costly Requests For Evidence from USCIS

9 Mandatory Requirements of Matter of Ho Business plan > Business descripwon > Business Structure > MarkeWng Plan with targeted markewng analysis > Personnel Experience > CompeWWve Analysis Required Licenses and Permits Staffing Wmetable for hiring (must show how you intend to create 10 jobs per investor) Job descripwons Budget and Financial informawon

10 Securities Law Procedure > Raising capital = securiwes offering > Need sophiswcated securiwes counsel familiar with EB- 5 rules, Broker Dealer issues - preparawon all offering documents (Private Placement Memorandum) > Engaging placement agents and local securiwes lawyers in various countries > Road show presentawons and markewng materials in various countries

11 Securities Act of 1933 > Registered Public Offerings of securiwes SEC review, post- sale reporwng, etc. > Private Offerings Exempt from RegistraWon Mostly under RegulaWon D Needed for other exempwons > Note: The JOBS Act is law, but the implemenwng rules are not yet in effect! 11

12 Investment Company Act of 1940 > Prohibits investment companies from engaging in interstate commerce unless registered or exempt. > Investment companies any issuer which: Holds itself out as engaged primarily in the business of inveswng in securiwes; or Is engaged in such business and 40%+ of its assets (exclusive of gov t securiwes, cash and certain subsidiaries) are investment securiwes.

13 Investment Advisers Act of 1940 > Prohibits investment advisers from engaging in interstate commerce in connecwon with his or her business as an investment adviser unless registered or exempt. > Investment advisers anyone who, for compensawon, engages in the business of advising others as to the value of securiwes or issues reports concerning securiwes. > AnW- fraud provisions.

14 Investment Advisers Act of 1940 > Prohibits investment advisers from engaging in interstate commerce in connecwon with his or her business as an investment adviser unless registered or exempt. > Investment advisers anyone who, for compensawon, engages in the business of advising others as to the value of securiwes or issues reports concerning securiwes. > AnW- fraud provisions.

15 Structure > Real Estate Development TransacWons - normally run through a Regional Center (benefit of indirect jobs) Set up as loan from the new commercial enterprise to the development - paid off in 5 years at loan interest rate. Loan usually secured but deeply subordinate to a senior lender or as mezzanine financing > Non- Real Estate growth- oriented companies normally direct investments EB- 5 investor becomes a preferred equity holder with a small coupon (basically no other rights) Ader 5 years, investor wishes to redeem but can only be at the elecwon/ discrewon of the manager of the new commercial enterprise In both cases, the investor s capital must always be at risk

16 Why Use EB-5? > Complicated process that could yield very successful results > Billions of dollars raised by companies - small to Fortune 500 > Yield very effecwve - oden the coupon paid on the money over 5- year term can range from 1% - 2% > Makes economic sense as part of capital stack of any project that creates NEW jobs, thus making the Wme and investment worthwhile EB- 5 is also a good way to replace short- term construcwon loans easier. EB- 5 can come in and take out a 3 year construcwon loan with a 5-6 year term, giving a developer more Wme for a project to stabilize and obtain long- term financing to replace the EB- 5. > Deals make sense for investors - they get a green card and ulwmately ciwzenship in US for themselves and their family in exchange for $500,000/$1,000,000 > If deal is successful, investor receives their principal back in 5 years!

17 Questions? Laura Reiff Batya Goodman For up- to- date informawon on EB- 5 developments, please visit 17