Friday, November 21, 2014

How to Apply for EB5 Regional Center Designation, Part I

November 17, 2009 by USAdvisors  
Filed under EB-5 Regional Center News, EB-5 Visa News, FAQ, USCIS

EB5 Visa News readers have been asking for information on how they can apply for EB-5 Regional Center Designation.   To be sure, the process is complicated and we recommend hiring experts to help in filing the application, but this document should help illustrate the process and what the United States Citizenship and Immigration Service (USCIS) is looking for in an EB5 Regional Center application.

For help in selecting experts to file your EB5 Regional Center application, please contact USAdvisors.org or Michael Gibson at 239-465-4160, michael@usadvisors.org.

Part 1 is the form for submitting to the USCIS California Service Center.  Part 2 will have the form for submitting to USCIS in Washington DC.

HOW TO APPLY FOR REGIONAL CENTER DESIGNATION

In all likelihood your submission will be more than several pages, please use acco-fasteners to attach the documents at the top of each page or place it in a three ring binder with tabs. Send submissions to:

USCIS California Service Center

ATTN: EB-5 Regional Center Proposal

P.O. Box 10526

Laguna Niguel, CA 92607-0526

For non-U.S. Postal Service deliveries (e.g. private couriers), send to:

U.S. Citizenship and Immigration Services

California Service Center Attn: EB-5 Processing Unit

24000 Avila Road, 2nd Floor

Laguna Niguel, CA 92677

What is the Immigrant Investor Pilot Program?

The Immigrant Investor Pilot Program (“Pilot Program”) was created by Section 610 of Public Law 102-395 (October 6, 1992), as amended. This is different in certain ways from the basic EB-5 investor program.

The Pilot Program began in accordance with a Congressional mandate aimed at stimulating economic activity and creating jobs for U.S. workers, while simultaneously affording eligible aliens the opportunity to become lawful permanent residents. Through this innovative program, foreign investors are encouraged to invest funds in an economic unit known as a “Regional Center.”

A Regional Center is defined in the regulations as any economic unit, public or private, engaged in the promotion of economic growth, improved regional productivity, job creation and increased domestic capital investment.

Initial evidence requirements.

1. 8 CFR 204.6 (m) states in pertinent part:

(3) Requirements for Regional Centers. Each regional center wishing to participate in the Immigrant Investor Pilot Program shall submit a proposal to the…[Chief, Office of Service Center Operations]…, which:

(i) Clearly describes how the regional center focuses on a geographical region of the United States, and how it will promote economic growth through improved regional productivity, job creation, and increased domestic capital investment;

(ii) Provides in verifiable detail how jobs will be created indirectly; …………..

(iii) Provides a detailed statement regarding the amount and source of capital which has been committed to the regional center, as well as a description of the promotional efforts taken and planned by the sponsors of the regional center;

(iv) Contains a detailed prediction regarding the manner in which the regional center will have a positive impact on the regional or national economy in general as reflected by such factors as increased household earnings, greater demand for business services, utilities, maintenance and repair, and construction both within and without the regional center; and

(v) Is supported by economically or statistically valid forecasting tools, including, but not limited to, feasibility studies, analyses of foreign and domestic markets for the goods or services to be exported [if any], and/or multiplier tables.

2. It is always best to start with a cover letter that acts as an executive summary followed by a table of contents of the various tabbed sections to follow.

In reference to 8 CFR 204.6(m)(3)(i) as stated above the geographical area must be contiguous and clearly delineated. It is most helpful to provide the following series of maps, charts or written descriptions:

The entire desired Regional Center Area

Standard Metropolitan Statistical Areas (SMSA’s)

Rural Areas (areas outside SMSA’s with populations under 20,000 people)

High Unemployment Targeted Employment Areas (TEA’s) as determined by the Governor or designee, (1.) areas within SMSA’s or 2.) population centers of 20,000 or more outside SMSA’s; with unemployment rates 150% or more of the national rate)

Census Tracts, Cities, Towns, Counties, etc.

Unemployment Rates by Cities, Towns, Counties or Census Tracts, etc.

3. In reference to 8 CFR 204.6(m)(3)(ii) as stated above for a Regional Center it is imperative to fully explain indirect job creation, as well as the direct and induced jobs, if any. The requirement of creating at least 10 new full-time (35 hours per week) jobs per each individual alien investor may be satisfied by showing that, as a result of the investment and the activities of the new enterprise, at least 10 jobs per alien investor will be created directly or indirectly through an employment creation multiplier effect. Submit an Economic Analysis and model that shows and describes job creation for each category of economic activity (for example, manufacturing, food production/processing, warehousing, tourism and hospitality, transportation, power generation, agriculture, etc.) Aspects of this element of the proposal may be combined with items 7 and 8, below in a single economic analysis and job creation model.

Concerns about the lack of a level and range of detail in the business plan and impact analyses, which makes sound business sense, especially at the individual I-526 level of detail, unfortunately is neither explicitly required nor demanded under the provisions of the INA which apply to the Immigrant Investor Pilot Program nor specific amendments to the statute, especially in the 2002 amendment Per Public Law 107-273, enacted November 2, 2002, which clearly states:

“A regional center shall have jurisdiction over a limited geographic area, which shall be described in the proposal and consistent with the purpose of concentrating pooled investment in defined economic zones. The establishment of a regional center may be based on general predictions, contained in the proposal, concerning the kinds of commercial enterprises that will receive capital from aliens, the jobs that will be created directly or indirectly as a result of such capital investments, and the other positive economic effects such capital investments will have.”

When relying on econometric models for indirect job creation it is imperative that “direct jobs” will be real identifiable jobs supported by wage reports or I-9 forms otherwise they must be explicitly identified as hypothetical in nature. Another method would be to predict jobs based on dollar amount invested in the overall project, this too must be made clear. This distinction will be critical at the I-829 removal of condition stage of the immigration process.

4. In reference to 8 C.F.R. § 204.6(m)(3)(iii), a proposal must include a detailed statement regarding the amount and source of the capital that has been committed to the Regional Center, in addition to the description of the promotional efforts taken and planned by the Regional Center’s sponsors. USCIS has interpreted the words, “amount and source of capital that has been committed to the Regional Center” to mean the capital sufficient to sustain the Regional Center distinct from immigrant investors’ required capital investment in a new commercial enterprise within the Regional Center.

The detailed statement that is required to meet the regulatory requirement relating to the amount and source of capital committed to the Regional Center should include: 1.) the exact amount of funds that have been dedicated to the Regional Center to accomplish the goals of the Pilot Program; 2.) the source of such funds; 3.) whether the amount is sufficient to sustain the Regional Center; and 4.) evidence that the funds have already been committed to the Regional Center. None of the capital sustaining the Regional Center can come from immigrant investors’ required threshold capital investment (as distinct from the new commercial enterprises’ revenues). This separation of funds is necessary to enable the alien entrepreneur to qualify for the conditional EB-5 immigrant investor classification at the I-526 petitioning stage of the immigration process.

5. Also, under 8 CFR 204.6(m)(3)(iii) as stated above for any individual alien investor who will be solicited by a Regional Center to invest the requisite capital into a Regional Center commercial activity, it will be incumbent on the Regional Center to engage in a due diligence process to establish that all sources of capital can be fully explained and clearly shown to have been lawfully obtained.

Submit a plan of proposed Regional Center operation which addresses how investors will be recruited and how the Regional Center will conduct its due diligence to accommodate the requirement that all immigrant investor funds will be lawfully obtained and describe what measures will be taken by the Regional Center to ensure and validate this. Will the submission of certain financial documents be required of foreign investors or will the Regional Center, for example, utilize a professional investigating firm to vet a potential investor’s source of funds? What are your plans in this regard?

6. Lastly under 8 CFR 204.6(m)(3)(iii), USCIS interprets the words “promotional efforts” to mean an advertising or marketing program planned by the sponsors of the Regional Center that is designed to attract immigrant investors to the Regional Center. Regional Center proposals require a full description of the past, current and future promotional activities for the Regional Center. This shall include a description of the budget for this activity as well as a statement as to the source of those funds used to accomplish this necessary task.

7. In reference to 8 CFR 204.6 (m)(3)(iv) as stated above a detailed prediction must be provided which includes the topics of regional or national impact, household earnings, greater demand for business services, utilities, maintenance and repair, and construction both within and without the Regional Center. This can be combined with items 3, above, and 8, below.

The proposal should not make vague references to regional economic impacts but should provide actual monetary predictions and address the elements listed in USCIS regulations. The economic model and analysis requested in item 3, above, and item 8, below, will also need to address these specific points as listed here.

8. In reference to 8 CFR 204.6 (m)(3)(v) as stated above submit a complete and valid economic analysis sufficiently detailed to predict the overall economic impact to be made by the Regional Center. This can be combined with items 3 and 7, above.

Again it is stressed that the economic analysis that can be combined with items 3 and 7, above, must be sufficiently detailed to predict the overall economic impact and localized impacts to be made by the Regional Center’s investment activities and projects.

9. The business aspects of the Regional Center must be fully explained as to its structure. This aspect of a proposal includes, but is not limited to, the following basic elements or samples of them as applicable to the business approach and structure to be used by the Regional Center:

An overall Business Plan-mandatory

Draft Operating Agreement

Draft Partnership Agreement

Draft Subscription Agreement

Draft Escrow Agreements and Instructions (one for capital and one for any service fees) Such agreements usually include an “out clause” in the event of an unsuccessful visa process as a marketing tool but are not required.

List of proposed reputable financial institutions to serve as the Escrow Agent(s)

Draft of an Offering Letter, Memorandum, Confidential Private Placement Memorandum, or similar offering made in writing to an immigrant investor through the Regional Center.

Draft Memorandum of Understanding, Interagency Agreement, Contract, Letter of Intent, Advisory Agreement, or similar agreement to be entered into with any other party, agency or organization to engage in activities on behalf of or in the name of the Regional Center.

10. Submit a description of the applicant’s plans to administer, oversee, and manage the proposed Regional Center, including but not limited to such things as to identify, assess and evaluate proposed immigrant investor projects and enterprises; how the proposed Regional Center would perform “due diligence” as to whether investment capital to be sought will consist solely of alien investor capitol or a combination of alien investor capital and domestic capital; how to monitor all investment activities affiliated, through or under the sponsorship of the proposed Regional Center, and to maintain records, data and information on projects, investors, business activities, etc., in order to report to USCIS for each Federal Fiscal Year . This is known as “due diligence” and is coupled with “oversight reporting responsibilities”. Fully explained in detail below.

DESIGNEE’S RESPONSIBILITIES INHERENT IN CONDUCT OF A USCIS DESIGNATED REGIONAL CENTER:

The law, as reflected in the regulations at 8 CFR 204.6(m)(6), requires that an approved Regional Center in order to maintain the validity of its approval and designation must continue to meet the statutory requirements of the Immigrant Investor Pilot Program by serving the purpose of promoting economic growth, including increased export sales (where applicable), improved regional productivity, job creation, and increased domestic capital investment. Therefore, in order for USCIS to determine whether your Regional Center is in compliance with the above cited regulation, and in order to continue to operate as a USCIS approved and designated Regional Center, your administration, oversight, and management of your Regional Center shall be such as to monitor all investment activities under the sponsorship of your Regional Center and to maintain records, data and information on a quarterly basis in order to report to USCIS upon request the following year to date information for each Federal Fiscal Year, commencing with the initial year as follows:

Provide the principal authorized official and point of contact of the Regional Center responsible for the normal operation, management and administration of the Regional Center.

Be prepared to explain how you are administering the Regional Center and how you will be actively engaged in supporting a due diligence screening of its alien investors’ lawful source of capital and the alien investor’s ability to fully invest the requisite amount of capital.

Be prepared to explain the following:

How the Regional Center is actively engaged in the evaluation, oversight and follows up on any proposed commercial activities that will be utilized by alien investors.

How the Regional Center is actively engaged in the ongoing monitoring, evaluation, oversight and follows up on any investor commercial activity affiliated through the Regional Center that will be utilized by alien investors in order to create direct and/or indirect jobs through qualifying EB-5 capital investments into commercial enterprises within the Regional Center.

Be prepared to provide:

the name, date of birth, petition receipt number, and alien registration number (if one has been assigned by USCIS) of each principal alien investor who has made an investment and has filed an EB-5/I-526 Petition with USCIS, specifying whether:

the petition was filed,

is pending,

was approved,

denied, or

withdrawn by the petitioner, together with the date(s) of such event.

The total number of visas represented in each case for the principal alien investor identified in D.a. above, plus his/her dependents (spouse and children) for whom immigrant status is sought or has been granted.

The country of nationality of each alien investor who has made an investment and filed an EB-5/I-526 petition with USCIS.

The U.S. city and state of residence (or intended residence) of each alien investor who has made an investment and filed an EB-5/I-526 petition with USCIS.

For each alien investor listed in item D.a., above, identify the following:

the date(s) of investment in the commercial enterprise;

the amount(s) of investment in the commercial enterprise; and

the date(s), nature, and amount(s) of any payment/remuneration/profit/return on investment made to the alien investor by the commercial enterprise and/or Regional Center from when the investment was initiated to the present.

Be prepared to identify/list each of the target industry categories of business activity within the geographic boundaries of your Regional Center that have:

received alien investors’ capital, and in what aggregate amounts;

received non-EB-5 domestic capital that has been combined and invested together, specifying the separate aggregate amounts of the domestic investment capital;

of the total investor capital (alien and domestic) identified above in E.a and E.b, identify and list the following:
The name and address of each “direct” job creating commercial enterprise.
The industry category for each indirect job creating investment activity.

Be prepared to provide:

The total aggregate number of approved EB-5 alien investor I-526 petitions per each Federal Fiscal Year to date made through your Regional Center.

The total aggregate number of approved EB-5 alien investor I-829 petitions per each Federal Fiscal Year to date through your Regional Center.

The total aggregate sum of EB-5 alien capital invested through your Regional Center for each Federal Fiscal Year to date since your approval and designation.

The combined total aggregate of “new” direct and/or indirect jobs created by EB-5 investors through your Regional Center for each Federal Fiscal Year to date since your approval and designation.

If applicable, the total aggregate of “preserved” or saved jobs by EB-5 alien investors into troubled businesses through your Regional Center for each Federal Fiscal Year to date since your approval and designation.

If for any given Federal Fiscal Year your Regional Center did or does not have investors to report, then provide:

a detailed written explanation for the inactivity,

a specific plan which specifies the budget, timelines, milestones and critical steps to:

actively promote your Regional Center program,
identify and recruit legitimate and viable alien investors, and

a strategy to invest into job creating enterprises and/or investment activities within the Regional Center.

Regarding your website, if any, please be prepared to provide a hard copy which represents fully what your Regional Center has posted on its website, as well as providing your web address. Additionally, please provide a packet containing all of your Regional Center’s hard copy promotional materials such as brochures, flyers, press articles, advertisements, etc.

Finally, please be aware that it is incumbent on each USCIS approved and designated Regional Center, in order to remain in good standing, to notify the USCIS EB-5 Immigrant Investor Program within 15 business days at HYPERLINK “mailto:USCIS.ImmigrantInvestorProgram@dhs.gov” USCIS.ImmigrantInvestorProgram@dhs.gov of any change of address or occurrence of any material change in:

the name and contact information of the responsible official and/or Point of Contact (POC) for the RC
the management and administration of the RC,
the RC structure,
the RC mailing address, web site address, email address, phone and fax number,
the scope of the RC operations and focus,
the RC business plan,
any new, reduced or expanded delegation of authority , MOU, agreement, contract, etc. with another party to represent or act on behalf of the RC,
the economic focus of the RC, or
any material change relating to your Regional Center’s basis for its most recent designation and/or reaffirmation by USCIS.

Now that USCIS has outlined the duties inherent in the conduct of a Regional Center, please submit a plan of action to remain in compliance with the enumerated requirements.

11. With respect to the process by which a High Unemployment Area (USCIS TEA) is designated by the State.  The exact and complete relevant language of the regulation that covers this may be found at 8 CFR 204.6(i), where it reads as follows:

State designation of a high unemployment area. The state government of any state of the United States may designate a particular geographic or political subdivision located within a metropolitan statistical area or within a city or town having a population of 20,000 or more within such state as an area of high unemployment (at least 150 percent of the national average rate). Evidence of such designation, including a description of the boundaries of the geographic or political subdivision and the method or methods by which the unemployment statistics were obtained, may be provided to a prospective alien entrepreneur for submission with Form I-526. Before any such designation is made, an official of the state must notify the… [Chief, Office of Service Center Operations]… of the agency, board, or other appropriate governmental body of the state which shall be delegated the authority to certify that the geographic or political subdivision is a high unemployment area.

Therefore it is incumbent upon the state to notify USCIS which “governmental body of the state” has been delegated the authority by the Governor to certify that a geographic or political subdivision is a high unemployment area for purposes of being designated as a Targeted Employment Area (TEA) under USCIS regulations. [Applicable sentence in bold above.]  It is left to the appropriate designee within the state to exercise its authority and utilize what method or methods of its choosing in obtaining the unemployment statistics.

A letter from the Governor of the state identifying the designated authority within the state to certify the geographic area(s) or political subdivision(s) within applicable metropolitan statistical areas as having high unemployment equal to 150% or more of the national unemployment rate would need to be addressed as follows and sent via Express Mail or courier service to:

Chief, Office of Service Center Operations, MS 2060
U.S. Citizenship and Immigration Services
20 Massachusetts Avenue, NW
Washington, DC 20529-2060

Further clarification of the role of the state designated authority in the I-526 process is found at 8 CFR 204.6 (j) (6) (ii) (B) as follows:

(6) If applicable, to show that the new commercial enterprise has created or will create employment in a targeted employment area, the petition must be accompanied by:
…..
(ii) In the case of a high unemployment area:
…..
(B) A letter from an authorized body of the government of the state in which the new commercial enterprise is located which certifies that the geographic or political subdivision of the metropolitan statistical area or of the city or town with a population of 20,000 or more in which the enterprise is principally doing business has been designated a high unemployment area. The letter must meet the requirements of 8 CFR 204.6(i). [Applicable sentence underlined above.]
It is hoped that the above references and information will be of help to you and the appropriate officials of the state with respect to your interest in seeking to establish a Regional Center through the Immigrant Investor Pilot Program that would focus within the state.

PLEASE NOTE: For your proposal submission and supporting evidence for items 1 through 11 above, please use acco-fasteners or place in a three ring binder with tabs to attach the documents at the top of each page, and individually tab the written materials/responses which you submit for each of the applicable items listed above in items 1 through 11. Also, submit the proposal in duplicate.

Translations Any document containing a foreign language submitted to USCIS shall be accompanied by a full English translation that the translator has certified as complete and accurate, and by the translator’s certification that he or she is competent to translate from the foreign language into English.

Copies Unless specifically required that an original document be filed with an application or petition, an ordinary legible photocopy may be submitted. Original documents submitted when not required will remain part of the record, even if the submission was not required.

Address Changes If you change your address and you have an application or petition pending with USCIS, you may change your address by sending notification to:

USCIS California Service Center
P.O. Box 10526
Laguna Niguel, CA 92607-0526
(Or by E-mail at HYPERLINK “mailto:USCIS.ImmigrantInvestorProgram@dhs.gov” USCIS.ImmigrantInvestorProgram@dhs.gov.)

If you have any questions concerning any such approval and designation under the Immigrant Investor Pilot Program, please contact the USCIS EB-5 Immigrant Investor Program by Email at HYPERLINK “mailto:USCIS.ImmigrantInvestorProgram@dhs.gov” USCIS.ImmigrantInvestorProgram@dhs.gov.
A Federal Fiscal Year runs for twelve consecutive months from October 1st to September 30th.

Related posts:

  1. Federal Way ‘Regional Center’ Designation to Stimulate Local Economy, Create Opportunities for Foreign Investors
  2. USCIS’s Donald Neufeld Memo On Adjudication Of EB-5 Regional Center Proposals, and other EB-5 visa program issues
  3. New Atlanta Georgia EB-5 Regional Center Approved!
  4. Greenwood Village (Colorado) financial investment firm, Waveland Ventures, awaits designation as EB-5 visa Colorado Regional Center
  5. Everett, WA Announces Expansion of EB5 Regional Center

Comments

One Response to “How to Apply for EB5 Regional Center Designation, Part I”
  1. B Chin says:

    Does the article “How to apply for eb5 RC designation, Part I” has a continuation into Part II? If so, pleasse lead me to find part II.

    It is very helpful to me get to understand more about EB5 program which i have great interest… Thank you.

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