Investment Law Blog

By Catherine DeBono Holmes, Esq. and Victor T. Shum, Esq.

The proposed Senate Bill reauthorizing the EB-5 Regional Center Program would restrict the types of projects that can be funded with EB-5 financing and amount of funds that can be raised with EB-5 financing.

The Senate Bill, entitled “American Job Creation and Investment Promotion Reform Act of 2015,” which was introduced on June 4, 2015, contains some provisions that would strengthen the oversight of the EB-5 Program, but the Bill also contains some provisions that would effectively disqualify many construction projects seeking to obtain financing through the EB-5 Program, and reduce the amount of EB-5 financing that could be obtained for many other construction projects. In particular, these provisions would change the ways in which jobs are counted for purposes of determining which projects qualify for EB-5 financing, and how many jobs are credited for each project. There is no explanation in the Bill or by the Senators proposing these changes as to the reasons why they believe these changes are necessary, or in what way they believe these changes would improve the EB-5 Program. In fact, we believe these changes are unwise and should be removed from the Bill because it is counter to the original intent of EB-5 program by reducing foreign investment and job growth and by hurting small and medium sized American businesses from accessing much needed capital.

The proposal to allow only 90% of the requirements for job creation to be satisfied through indirect jobs would effectively eliminate EB-5 financing for all construction projects to be completed in two years or less which are not associated with operating businesses following completion.

One of the provisions of the Bill states that up to 90% of the jobs required to be created in order to qualify for EB-5 financing may be created indirectly through investment. The EB-5 Program currently has no requirement that any portion of the jobs created be direct or indirect jobs, and requires simply that at least 10 new jobs be created for every investor. If the Bill is passed with this provision, it would mean that at least 10% of the jobs for every EB-5 project must be direct jobs. It is not clear in the Bill if that means that the entity in which EB-5 investors invest their funds must have direct employees (i.e. W-2 employees), or that the project must include direct effect employees, as calculated by an economic model such as RIMS II or IMPLAN. We assume it means the latter, because if it meant that the entity in which the EB-5 investors invested must have its own employees, that would be an extremely severe restriction, because most EB-5 investment entities are formed as financing vehicles for specific projects, and are not themselves employers of any employees.

Even if this provision is intended to mean that the project must include direct effect employees from an economic model, it would automatically exclude many construction projects. This is because EB-5 regulations currently do not allow any construction project that will be completed in under two years to count any direct construction jobs for EB-5 purposes. Therefore, this provision requiring at least 10% direct employees would automatically exclude any multi-family, condominium, office or other construction project that took under two years to build and was not part of an operating business. This requirement of at least 10% direct employees could be met by developers of real estate intended to be used for an operating business, such as hotel, restaurant, or assisted living facility, because those projects would have direct employees in their operating phase. In addition the requirement could be met by a construction project that would take over two years to build, because those projects are allowed to count direct construction jobs. However, it is unclear why the requirement for at least 10% direct jobs should be required at all, given that its effect would be to automatically shut out of any EB-5 financing construction projects to be completed within two years for multi-family, condominium, office or other types of commercial development. Moreover, since smaller, short-term projects which are completed in less than two years are the most viable types of projects in economically disadvantaged communities, this requirement would appear to be counter to the intent of the EB-5 program of promoting job growth and economic stimulus.

Published on: May 19, 2015

Hotelier Roadmap to EB-5 Financing for New Hotel Construction, Expansion or Renovation: Ten Steps to a Successful EB-5 Offering

Hotelier Roadmap to EB-5 Financing for New Hotel Construction, Expansion or Renovation: Ten Steps to a Successful EB-5 Offering

This article was first published in EB5 Investors Magazine.

The EB-5 investor visa program allows non-U.S. persons to invest $500,000 (or $1,000,000) in a business that is expected to create at least 10 new permanent jobs per investor, and to obtain a conditional visa upon review and approval by the United States Citizenship and Immigration Service (“USCIS”). Hotel projects are one of the best investment categories for EB-5 investors, because they tend to create more operating jobs than many other businesses, they are investments in real estate, which tend to be more stable in value than some other forms of investment that qualify for EB-5 financing, their business model is easy for investors to understand, and they are often operated by or under franchise licenses with hotel brands such as Hilton, Hyatt, Intercontinental, Starwood and Wyndham that are known around the world by potential EB-5 investors.

For those hotel developers seeking to access EB-5 financing, here are our recommended steps on the road to a successful EB-5 financing:

1. Determine if the project has the necessary characteristics to successfully raise financing through the EB-5 program. The sponsors of EB-5 investment offerings are always looking for good new projects, but the market is competitive, and to be successful, a project will need to have some key markers that demonstrate the project will be attractive to EB-5 investors. It is not necessary that all of these elements exist immediately, but the more of them that do exist when a developer first approaches potential EB-5 sponsors, the better the developer’s chances will be of attracting the most experienced and successful EB-5 sponsors:

Project preliminary work — The developer should have completed a significant amount of the preliminary project work, such as obtaining a hotel market feasibility study, preparing preliminary plans and budgets for the project, obtaining franchise approval or a hotel management agreement or letter of intent, acquiring the property and determining zoning and permit requirements.
Developer with Financial Strength and Track Record – The most successful EB-5 projects are those with experienced and financially strong developers. EB-5 sponsors and investors alike want projects run by strong companies with a history of success in developing similar projects.
Developer Equity Commitment – EB-5 sponsors and investors favor projects where the developer has a financial commitment of its own equity invested in the project – 20% equity or more is expected. There are some EB-5 projects where the developer has less than 20% equity in a project, but these are often more difficult to sell to investors unless there are other counterbalancing factors.
Commitments to Fund Entire Project Cost– EB-5 investors know that the success of a development will often depend on the developer’s ability to obtain a senior loan or other financing in addition to EB-5 capital, and having a committed senior loan or other financing shows that other lenders or investors have underwritten the project and determined that it has the potential to succeed. If a developer does not have committed capital, it may help to show that the developer is actively seeking this financing and has obtained some indications of interest.

Published on: May 7, 2015

The Basic Rules of Website Advertising for EB-5 Securities Offerings

The Basic Rules of Website Advertising for EB-5 Securities Offerings

By Catherine DeBono Holmes, Esq. and Victor T. Shum, Esq.

EB-5 securities issuers, sponsors and others who market EB-5 securities often want to use websites to provide information to potential investors regarding their past and current EB-5 projects. When using these websites, it is important to understand the U.S. securities laws that apply to internet marketing of securities within and outside the U.S. The purpose of this article is to provide a brief explanation of these securities laws and guidelines to consider when using websites to identify or market EB-5 securities offerings.

Using websites to advertise EB-5 offerings is considered a form of “general solicitation” under U.S. securities laws, unless guidelines to restrict access to non-U.S. persons are followed. Since 1995, the Securities and Exchange Commission (“SEC”) has held the position that posting offering materials on a website in a way that can be accessed by any viewer is a general advertisement or general solicitation, unless some restrictive access measures are implemented to allow access only to permitted persons. In 1998, the SEC issued an interpretation on the use of internet websites to offer or advertise securities outside the U.S., providing guidance on specific measures that can be taken to retain the Regulation S exemption for offerings made to non-U.S. persons outside the U.S., and concurrently retain the right to make an offering under Regulation D to persons located in the U.S. at the time of the offering. The guidelines provided in this article are derived in part from that SEC release.

If an EB-5 securities issuer intends to accept any U.S. investor, it is necessary to meet the requirements of Regulation D, including the restrictions on use of websites to advertise the offering. Although EB-5 securities offerings are generally offered to investors outside the United States, it is not unusual that some investors making an EB-5 investment will be located in the United States at the time they receive information about an EB-5 offering, or they receive or sign EB-5 offering documents. Such investors may be international students attending university in the U.S. or other temporary U.S. visa holders. All of those types of persons are considered “U.S. Persons” under Regulation S, and issuers are not qualified to rely on the Regulation S exemption with respect to EB-5 securities sold to those U.S. Persons. For that reason, most EB-5 offerings rely on SEC Regulation S for investors who are outside the U.S. when they are solicited, or they receive or sign offering documents, or on SEC Regulation D for sales to U.S. Persons. When an issuer of EB-5 securities intends to rely on Regulation D to accept some investors who are “U.S. Persons,” the issuer and its agents must take care to assure that all websites used to promote the EB-5 offering – including those of the issuer and those of all of the agents promoting the offering – will meet the requirements of Regulation D.

Regulation D now has two options: use general solicitation with verification of “accredited investor” status for all U.S. Person investors or use no general solicitation for U.S. Person investors. In July 2013, the SEC implemented aspects of the Jumpstart Our Business Startups Act (JOBS Act) and amended Regulation D under Rule 506(c) to allow the use of general solicitation for investors who are U.S. Persons, if the issuer requires verification of every U.S. Person investor’s status as an “accredited investor,” by requiring that investors submit copies of their tax returns, bank statements or other recognized means of verification. However, the SEC also allows issuers to follow the old Regulation D requirements under Rule 506(b), which do not require verification of accredited investor status from U.S. Person investors, as long as no general solicitation is used for the offering. This means that if an EB-5 securities issuer wants to use general solicitation with no restriction, including no restrictions on websites offering the securities, it can do that, as long as it required every U.S. Person investor to provide one of the recognized means of verification of their status as an “accredited investor.”

Published on: April 10, 2015

Catherine DeBono Holmes Will Participate as a Panelist at the 2015 IIUSA EB-5 Regional Economic Development Advocacy Conference

OS ANGELES – Catherine De Bono Holmes, Chair of the Investment Capital Law Group at Jeffer Mangels Butler & Mitchell LLP and publisher of the Investment Law Blog, will participate on a panel at the IIUSA 8^th annual EB-5 Regional Economic Development Advocacy Conference in Washington D.C. on April 14^th. The topic of her panel is “EB-5 & Securities Law: Compliance in Today’s Market” and her co-panelists include Michael Homeier of Homeier & Law P.C., Ozzie Torres of Torres Law P.A. and Lili Wang of New City Advisors.

“I am honored to be speaking at this conference, which draws international investment and economic development professionals from around the world,” said Holmes. “The EB-5 program has made a contribution to the economic development of the U.S. by creating jobs and providing needed capital for developers and business owners. This conference provides an important platform to discuss the myriad issues that make the EB-5 program a success.”

“Guest of Honor” speakers at the conference include Michael Chertnoff, former Secretary of Homeland Security; C. Joshua Felker, Assistant Director, Enforcement Division of the SEC; Congressman Darryll Issa (R-CA); Senator Ron Johnson (R-WI); Congresswoman Zoe Lofgren (D-CA); Maria Odman, Ombudsmen, Citizen and Immigration Services; Charles Oppenheim, Chief, Visa Controls Office, U.S. Department of State; Peggy Philbin, Deputy Executive Director, U.S. Department of Commerce; James Wrona, VP and Associate General Counsel of FINRA.
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About the IIUSA Conference
The IIUSA 8^th annual EB-5 Regional Economic Development Advocacy Conference, sponsored by Invest in the USA takes place from April 12-14 at the Hyatt Regency Hotel in Washington, D.C. Click here for more information.

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Catherine DeBono Holmes is the chair of JMBM’s Investment Capital Law Group, and has practiced law at JMBM for over 30 years. She specializes in EB-5 immigrant investment offerings and hotel and real estate transactions made by Chinese investors in the U.S. Within the Investment Capital Law Group, Cathy focuses on business formations for entrepreneurs, private securities offerings, structuring and offering of private investment funds, and business and regulatory matters for investment bankers, investment advisers, securities broker-dealers and real estate/mortgage brokers. Contact Cathy at CHolmes@jmbm.com or 310.201.3553.

Published on: April 6, 2015

EB-5 Financing for Hotel Development

By Catherine DeBono Holmes and Bruce Baltin

This article was first published in the Winter 2015 edition of EB5 Investors magazine.

For EB-5 financing of hotel projects, proving that new jobs will be created requires evidence that there is a market demand for an additional hotel in the local market. The basic requirement for any EB-5 financing is to show that a project will create at least 10 new jobs per EB-5 investor. For new hotel projects that use EB-5 financing, it is necessary to show that the new hotel is not merely taking jobs from existing hotels in the area, but actually creating new jobs. That requires evidence that there is enough guest demand in a local market to allow a new hotel to open without causing existing hotels in the area to lose occupancy. If the project owner can demonstrate that the demand for hotel rooms already exists, it can show that opening a new hotel will create new jobs, without taking away the jobs of the existing hotels in the area. How can a project owner demonstrate that this demand for new hotel rooms exists?

Hotel valuation experts have developed a method to determine market demand in a local market that can be used for EB-5 financing. Hotel consultants such as PKF and HVS have developed standards for determining what they consider the natural optimum average occupancy rate for each local market, which we will call the “optimum occupancy rate.” The optimum occupancy rate refers to the percentage of occupancy that will maximize the profitability of the hotel, based on the market conditions in that local market rate. If the average occupancy is 80 percent but the optimum occupancy rate is 70 percent, hotel consultants conclude that there is a demand for hotel rooms that is not being met, because more people are staying in existing hotels in the market than the rate that would allow maximum profitability for all hotels in the market. This article explains how hotel consultants set the optimum occupancy rate for each local market, and why an average occupancy rate in excess of the optimum occupancy rate indicates a demand for additional hotels.

Published on: March 5, 2015

New Publication on EB-5 Financing and U.S. Securities Laws

Click here to download a copy of the booklet on EB-5 Financing and U.S. Securities Laws.

JMBM and AAEB5 Announce New Publication on EB-5 Financing and U.S. Securities Laws

Jeffer Mangels Butler & Mitchell LLP (JMBM) and Advantage America EB5 Group are pleased to announce the publication of Regional Centers & Sponsors and U.S. Securities Laws: How to evaluate broker-dealer, investment company and investment adviser registration requirements.

“When it comes to the EB-5 investment market, the SEC provides clear guidance in some areas and very little in others,” said co-author Catherine DeBono Holmes, Chair of JMBM’s Investment Capital Law Group. “The information in this publication covers the complex compliance issues associated with EB-5 offerings.”

Written in response to hundreds of queries received from EB-5 professionals and developers, the articles in the 30-page booklet were first published as a four-part series on the Investment Law Blog.

“Regional Centers and project sponsors are right to be concerned with complying with U.S. securities laws,” said co-author Victor T. Shum, CEO of Advantage America EB-5 Group. “Violations come with penalties that can jeopardize both the project and its investors, so the EB-5 investment must be structured properly.”

Holmes and Shum each have significant experience as securities counsel on a wide range of investments – both public and private – and have many years of experience in the EB-5 arena, representing numerous clients on projects funded in part through EB-5 financing.

Published on: December 15, 2014

How EB-5 Regional Centers and Sponsors Can Evaluate Broker-Dealer, Investment Company and Investment Adviser Registration Requirements under U.S. Securities Laws Part 4 –Investment Advisers Act requirements

This article is the fourth in a series of articles on how EB-5 regional centers and sponsors can evaluate broker-dealer, investment company and investment adviser registration requirements under U.S. securities laws.

You may want to read:
Part 1 – EB-5 offerings do not fit standard SEC registration requirements;
Part 2 – Securities broker-dealer registration requirements and hiring U.S. and Non-U.S. brokers; and
Part 3 – Investment Company Act requirements.

Check back soon for new articles on raising investment capital, or subscribe to the Investment Law Blog, and you will be notified when the next article is published.

Investment Advisers Act or state law registration requirements for investment advisers may apply to managers of EB-5 funds

In a presentation on securities law issues applicable to EB-5 regional centers and sponsors at the May 2014 annual conference of the Association to Invest In the USA (“IIUSA“), the trade association for EB-5 regional centers, a representative of the Securities and Exchange Commission (“SEC“) stated that the registration requirements of the Investment Advisers Act of 1940 (“Advisers Act“) may apply to general partners and managers of EB-5 investment funds. It was recommended that EB-5 regional centers and sponsors consider this issue as part of their efforts to comply with U.S. securities laws. In our view, the Advisers Act should not apply to most EB-5 regional centers or sponsors, for reasons that relate to the characteristics of EB-5 funds in general. However, unless and until the SEC provides further guidance on this issue, it is necessary for every EB-5 regional center and sponsor to analyze the registration requirements of the Advisers Act and determine if they apply. In addition, the regulation of investment advisers is bifurcated between the SEC, for investment advisers with over $100 million in assets under management, and the states, for those with under $100 million in assets under management, and so it is also necessary to determine whether there is a requirement to register as an investment adviser under applicable state law. Continue reading →

Published on: October 2, 2014

How EB-5 Regional Centers and Sponsors Can Evaluate Broker-Dealer, Investment Company and Investment Adviser Registration Requirements under U.S. Securities Laws Part 3 –Investment Company Act requirements

This article is the third in a series of articles on how EB-5 regional centers and sponsors can evaluate broker-dealer, investment company and investment adviser registration requirements under U.S. securities laws.

You may want to read: Part 1 – EB-5 offerings do not fit standard SEC registration requirements and Part 2 – Securities broker-dealer registration requirements and hiring U.S. and Non-U.S. brokers.

Check back soon for the rest of the series, or subscribe to the Investment Law Blog, and you will be notified when the next article is published.

As mentioned in Part 1 of this article, “EB-5 offerings do not fit standard SEC registration requirements,” U.S. securities laws were designed primarily for offerings of securities in the U.S. to protect U.S. investors, and these laws are not well suited to the EB-5 investment market. Nevertheless, it is necessary for EB-5 regional centers and sponsors of EB-5 offerings to understand the requirements of U.S. securities laws, and to structure EB-5 offerings in a way that will allow them to qualify for exemptions from the registration requirements. In Part 1 and Part 2 of this article, we discussed the requirements for exemption from registration of securities under the Securities Act of 1933 and exemption from registration as a securities broker-dealer under the Securities Exchange Act of 1934. In this Part 3, we discuss the registration requirements and exemptions under the Investment Company Act of 1940 (“ICA“).

What is an “investment company” under the Investment Company Act?

The ICA generally applies to every public or private company which invests over 40% of its assets in securities of one or more other companies, except securities of its own wholly owned subsidiaries. This definition includes any EB-5 fund, whether it is a limited partnership or limited liability company, that invests in the securities of a project company. For example, in the EB-5 “equity” model, if an EB-5 investment fund consisting of EB-5 investors (the new commercial enterprise or “NCE”, using USCIS terminology) purchases preferred equity interests in the project company (the job creating enterprise or “JCE”), the fund will be investing in securities of the JCE, and will therefore be deemed to be an investment company under the ICA. Loans are also considered securities under the ICA, meaning that in the EB-5 “debt” model, if an EB-5 investment fund makes a loan to a JCE, the fund will be deemed to be an investment company under the ICA. However, if the EB-5 fund itself owns the project (EB-5 investors are direct equity holders of the JCE), or one of its wholly-owned subsidiaries owns the project (EB-5 investors are equity holders in the fund, and the fund’s wholly-owned subsidiary owns the project), then the fund will not be considered to be investing in securities, and so will not be an investment company under the ICA. If an EB-5 investment fund meets the definition of an investment company under the ICA, the fund will be required to meet all of the requirements of the ICA, unless the fund is able to rely on one of several exemptions from the ICA, which will be discussed further below.

Published on: August 25, 2014

Financing Real Estate Projects with EB-5 Funds

On August 25, 2014, Catherine DeBono Holmes was featured in the GlobeSt.com article, Financing Projects with EB-5 Funds?, posted by Natalie Dolce, national executive editor of the publication:

“Some of the largest real estate developers in the country, including Related Cos., Silverstein Properties, Forest City Ratner, and many others, have raised hundreds of millions of dollars through the EB-5 program to help finance their largest real estate developments,” [Holmes] says. “Smaller real estate developers have also been successful in raising EB-5 financing to support their development projects.”

“There have also been some EB-5 financed projects that have failed, and some cases of blatant fraud by a few bad actors, she notes. “The recent Fortune Magazine article about the Chicago Convention Center case that occurred in 2012 painted a dark portrait, making it appear as if this one case was representative of the entire EB-5 program. The article failed to present an accurate portrayal of the EB-5 program as a whole, failed to mention the multitude of EB-5 financed projects that have succeeded, and caused confusion among real estate developers about whether or not EB-5 financing is a viable source of capital for their projects.”

Dolce wrote:

“In response to the questions real estate developers are asking today about whether they should consider EB-5 financing as a potential source of capital for their projects, we talked with Catherine DeBono Holmes about some key facts about the requirements, timing, marketing, risks and recommended procedures for EB-5 financing.”

In this article, Catherine DeBono Holmes answers the following questions about financing projects with EB-5 funds:

• What are the most important elements of a successful EB-5 financing?

• How long does it take before a developer receives the proceeds of an EB-5 financing?

• How much does EB-5 financing cost?

• What are the risks of using EB-5 financing and how does a developer protect against those risks?

Click here to read the full article.

Catherine DeBono Holmes is Chair of the Investment Capital Law Group at Jeffer Mangels Butler & Mitchell LLP, and the is the publisher of the Investment Law Blog. She has represented more than 50 real estate developers in obtaining EB-5 financing for their projects.

To review all of her articles on this topic, click on “EB-5 Financing” in the Topics menu to the right, and scroll down through all the articles we have posted.

In addition to forming EB-5 Regional Centers for investment in U.S. business through the EB-5 immigrant investor visa program, JMBM’s Investment Capital Law Group assists clients with forming U.S. and non-U.S. private investment funds for investment in real estate, mortgage loans, securities and other investments; sourcing and raising investment capital for hotel, multi-family and mixed use real estate developments throughout the U.S.; acting as securities counsel in connection with offerings of investment securities in compliance with exemptions from registration under the Securities Act of 1933 in the U.S. under SEC Regulation D and outside the U.S. under SEC Regulation S; and assisting securities issuers with crowdfunding.

Click here to see a full list of the services provided by JMBM’s Investment Capital Law Group.

Published on: August 14, 2014

How EB-5 Regional Centers and Sponsors Can Evaluate Broker-Dealer, Investment Company and Investment Adviser Registration Requirements under U.S. Securities Laws – Part 2: Securities broker-dealer registration requirements and hiring U.S. and Non-U.S. brokers