EB-5 investors need several professionals throughout their EB-5 journey. There are different roles in the EB-5 visa application process; some are mandatory, while others are optional. The EB-5 investor has a direct relationship with some and indirect contact with others, whether they invest directly or through a regional center. Each player is critical in ensuring a smooth and compliant EB-5 application process.
What role in the EB-5 process is mandatory?
Immigration attorney
They play a significant role in handling the entirety of the application process, from the first step (filing the I-526 form) to the final stage (I-829 petition). An experienced EB-5 attorney will ensure that the investor’s source of funds (SOF) documentation meets the EB-5 requirements, that the chosen investment in a project complies with U.S. regulations, and that all EB-5 visa petitions are filed correctly. The attorney also facilitates a clear understanding of how the investment interacts with U.S. immigration law and ensures compliance throughout the process. However, they cannot select a project for their client; they can only connect the investor with the project’s principal for evaluation. In addition, they may require the support of a due diligence specialist (financial analyst), a securities attorney, and a broker-dealer to aid in their legal advice.
Securities attorney
They support the EB-5 investor outside the application process. They ensure that the EB-5 investment and the project are appropriately structured, whether sponsored by a regional center or a standalone venture. Securities attorneys handle the interaction between the EB-5 investment and U.S. Securities and Exchange Commission guidelines. Without this, the EB-5 process could be stalled or stopped altogether. Regional centers, project owners, and developers also work with securities attorneys.
Project developer
This entity conceptualizes, plans, and executes the EB-5 project to create the jobs required for the EB-5 visa application. It can work exclusively with regional centers or pursue direct investment outside regional center sponsorship.
Regional Center
The EB-5 Regional Center is an organization designated by the USCIS that sponsors capital investment projects for EB-5 investors. This designation allows for indirect job creation, making it easier to meet the job creation requirements under the EB-5 program. Regional centers are suitable for applicants who are more focused on obtaining residency rather than directly managing their investment.
Fund administrator
The 2022 EB-5 Reform and Integrity Act (RIA) requires New Commercial Enterprises (NCE) to hire a third-party fund administrator. This administrator monitors and verifies fund transfers, prepares financial statements, and ensures compliance. They must be a Registered Investment Adviser (RIA), an attorney, a CPA, or a broker-dealer.
Due diligence specialist
This professional can be part of the immigration attorney’s legal advisory team or a separate individual with a financial analysis background. They conduct thorough investigations and assessments of various aspects related to investment projects. They help ensure that the project the investor selects meets the required standards, complies with regulations, and presents a viable investment opportunity. All brokers and advisors that provide due diligence advice must appear on the Securities and Exchange Commission’s (SEC) BrokerCheck online verification system and be certified by the U.S. Financial Regulatory Authority (FINRA) to advise about EB-5 investments.
Certified translators
Qualified translation services are required for the documents and paperwork needed for the application process. USCIS mandates that all materials for EB-5 applications be fully translated into English and accompanied by certified translation letters. An incomplete or uncertified translation may result in the disqualification of an immigrant investor or prompt requests for evidence (REF), which can further delay the adjudication process.
What roles in the EB-5 process are optional?
Broker-dealer or Investment Advisor
They must be licensed professionals when considering EB-5 projects and be significant when investing through a regional center. EB-5 broker-dealers can help ensure the chosen project is financially sound, has a proven track record, and meets the EB-5 program’s job creation requirements. Additionally, it mentions that very few lawyers are qualified as broker-dealers to advise on investment projects or perform due diligence analyses.
Certified Public Accountant (CPA)
They can verify the legal source of your funds, help you gather the required documentation, and prepare financial statements. This role may be particularly important if the funds are from a foreign country with currency exchange or documentary requirements. Additionally, U.S.-licensed CPAs assist with tax planning, especially as some EB-5 investments could have U.S. tax implications.
Migration agent
Their focus is on finding and guiding investors in their home countries through visa options, helping with document preparation, and helping during application.
Escrow agent
Regional center investors must transfer their funds into an escrow account in the U.S. before investing them in an EB-5 project. The accounts are established by developers or the regional center sponsoring the project through an escrow agent, who typically sets conditions for releasing the funds. A common condition is for the EB-5 applicant to have successfully filed an I-526 form for the USCIS to approve it or when it’s time for the money to be fully invested in the Jobs Creating Entity (JCE) responsible for creating the jobs required. Escrow accounts function similarly to bank accounts and can be provided by banks and authorized financial institutions. While not a formal EB-5 program requirement, it has become a best practice.
Litigation attorney
These attorneys represent EB-5 investors in complex federal litigation matters, including cases involving regional centers and EB-5 projects affected by failure or fraud. For example, litigation has become an effective tool for prompting USCIS to address prolonged application delays and a growing backlog. Successful lawsuits have the potential to expedite the processing of petitions compared to standard agency timelines. This impact is particularly relevant to foreign nationals outside the U.S. Additionally, they can represent EB-5 regional centers or issuers as defendants in USCIS or SEC enforcement actions.
Tax attorneys
They specialize in U.S. tax laws and can assist EB-5 investors in fulfilling their tax obligations for income, profits, and property when necessary. They guide pre-immigration tax planning, optimal strategies for international relocations, and global income management. Attorneys are well-versed in U.S. tax regulations, including the obligation to report worldwide income and individual state income laws.
Indirect roles in the EB-5 process that influence an investor’s application
Business Plan writer
They create a thorough business plan for the I-924 application for Regional Center designation. This document is crucial to an investor’s EB-5 visa application, specifically when submitting the I-526 petition. It needs to detail the planned commercial enterprise, job creation estimates, market analysis, financial projections, and other important information.
Regional Center operator
They work for the Regional Center and handle the job creation aspect of the EB-5 project. They track and report on job creation and the project’s success, providing the investor with the required evidence when it’s time to remove the conditions on their permanent resident status. They are not financial advisors but disclose vital information for the application process.
EB-5 economist
They are responsible for preparing and submitting the economic impact study that is used to verify the job creation potential and feasibility of the EB-5 project. Although EB-5 economists do not directly engage with investors, their reports play a significant role in preparing and submitting EB-5 applications. The USCIS will examine this study during the I-526 form stage and again during the I-829 stage to ensure that the projected jobs were created and complied with regulations. The agency will assess the methodology used and the accuracy and comprehensiveness of the economists’ data-driven analysis. Therefore, the economist’s experience is crucial to an applicant’s chances of approval.
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