Regulatory Wild West for Foreign Finders (GCC and the Middle East): Part 1

Foreign Finders

By: Jordan Lofaro*

The Securities and Exchange Commission (SEC) regulates nearly every transaction in and party to the U.S. securities industry through its exceedingly comprehensive registration process. The Commission requires public companies to register their shares for easy tracking, and advisors, brokers, finders, and associated parties to public trades must follow suit.

Registration requirements are barely less burdensome for private market players. Unlike their public counterparts, private companies are relieved of their duty to register issued stock.[i] However, The advisors, brokers, and finders for these private transactions must still register under the Commission’s complex regulatory regime. [ii] Registration is costly and time intensive, costing upwards of $10,000 and requiring over six months to complete. With three federal Acts, thousands of pages of statutory interpretation, and 80 years of experience, the SEC rarely skips a beat. The SEC offers a handful of limited exemptions and shelters for private intrastate dealers,[iii] insurance transactions, and even now equity crowd-funding.[iv] Yet the Foreign Finder finds no clear regulatory scheme charting its path, and no conclusive registration for its transnational business model.

Consider the hypothetical Petra Ventures,[v] the Qatari foreign finder that introduces the GCC’s elite network of private investors to American start-ups. With a foot in both the U.S. and the GCC, Petra must not only abide by the often unenforced registration requirements promulgated by the Securities and Commodities Authority of Dubai (SCA),[vi] but also the SEC’s foreign finder requirements. Regulatory structures in both Petra’s domestic and foreign jurisdiction leave the firm with an inconclusive understanding of its registration requirements, but Petra must nonetheless search for its definitive regulatory structure as a transnational foreign finder.

The SCA has a limited web presence poorly translated into English from Arabic, leaving anyone without a GCC Securities lawyer with no guidance. The Securities and Commodities Authority (SCA) is the governing regulatory body for securities in Dubai, UAE. Though all six GCC nations have adopted the SCA as their own regulatory body governing securities, the GCC nations have not made clear whether the SCA has transnational enforcement authority outside of the UAE. Furthermore, those states that enforce SCA regulations do so on inconsistent and opaque terms.

The SCA’s 2013 amendments to the Investment Funds Regulation offer new guidance on the registration requirements for brokers that bring securities established outside the UAE to investors from within the UAE.[vii] Article 36 of the Regulation further requires SCA approval for any promotion of interests in a Foreign Fund in the UAE, with no general exemptions available for private equity placements or for funds targets solely at sophisticated or institutional investors. Article 36 requires GCC brokers to register with the SCA further requires foreign funds to appoint a “local promoter or placement agent” when offering a foreign fund in the UAE.[viii] These transactions must bring minimum subscription amount per investor of AED 10 million (approximately US$ 2.7 million). The SCA imposes a series of obligations on local placement agents, including a duty of care in selecting a Foreign Fund, record-keeping duties, certain “know-your-client” obligations, and a duty to facilitate the exchange of ownership documents.

However, the SCA’s regulatory exemptions still provide Petra Ventures with a glimmer of clarity, and a pathway toward registration-free business dealings. GCC brokers that solicit exclusively foreign funds exclusively to certain GCC investors fall outside the scope of Article 36 entirely. Those certain investors include:[ix]

(1) UAE authorities and governments;

(2) Institutional investors;

(3) Investment managers who have authority to make investment decisions on behalf of their clients; and

(4) Deals that were initiated by UAE investors on a reverse-solicitation basis. However, brokers must keep records that prove the enquiry originated from the investor.

Through the 2013 Amendments, the SCA creates a prudent balance between maintaining retail investor protection, and promoting the UAE as an attractive financial hub for foreign fund sponsors and managers.[x] Once Petra Ventures obtains appropriate legal counsel from a securities lawyer well-versed in the UAE’s securities law, it may well confirm that it’s free to find GCC investors for U.S. ventures.

Petra may have won the domestic half of the battle, but the foreign jurisdiction’s requirements loom large. The firm must still search for the SEC’s exemption for foreign finders, or else succumb to its burden to register under the U.S.’s securities regime.

Stay tuned for Part 2 of Regulatory Wild West for Foreign Finders.


 

[i] 15 U.S.C. § 77(d)(a)(2).

[ii] 15 U.S.C. § 78o(a).

[iii] Id.

[iv] “Crowdfunding under the JOBS Act,” Carlton Fields Jordan Burt law blog, available at http://www.cfjblaw.com/crowdfunding-under-jobs-act/.

[v] To learn more about Petra Investments, its team, board of directors, and investment strategy, visit http://www.Petrainvestments.com.

[vi] The Comissão de Valores Mobiliários is the Securities and Exchange Commission of Brazil, with a limited web presence in Portuguese available at http://www.cvm.gov.br/ingl/indexing.asp

[vii] Board Resolution No. 36-37, Investment Funds Regulation, Securities and Commodities Authority, available at http://www.sca.gov.ae/English/legalaffairs/LegalLaws/AmendedRules/2000_1_R.pdf.

[viii] Board Resulution No. 38, Investment Funds Regulation, Securities and Commodities Authority, available at http://www.sca.gov.ae/English/legalaffairs/LegalLaws/AmendedRules/2000_1_R.pdf.

[ix] Interpretive Guidance, available at file:///C:/Users/lofaro.j/Downloads/amendments-uae-investment-funds-regulation.pdf.

[x] SCA Guidance, available at http://www.nortonrosefulbright.com/knowledge/publications/70447/update-uae-investment-funds-regulations-issued.


 

Disclaimer: These materials have been prepared by Amin Consulting LLC for informational purposes only and are not legal advice.  The material posted on this web site is not intended to create, and receipt of it does not constitute, a lawyer-client relationship, and readers should not act upon it without seeking professional counsel.

About Amin Consulting LLC: Amin Consulting is a uniquely positioned advisory and consulting Firm that, through our diverse team of Legal and Business experts, provides unique and niche services for Middle Eastern and United States based companies and investors.  Whether you are a U.S. Company expanding in the Middle East, or a High Net Worth Family from the Middle East looking to diversify or protect its assets, you have come to the right place.

Our team is compromised of professionals with decades of collective consulting, legal, and business experience–specifically between those two regions of the world.  Most of our consultants are Accredited and Licensed United States Attorneys as well as International Business Consultants.  That allows us to provide, not only expert advice, but also added value through vertical integration of these often interconnected services.

For more information or a free consultation, send us a message here!

Changing Markets and New Opportunities in the GCC

cropped-dassault-falcon-7x-over-dubai-1.jpg

By: Eduardo Gonzalez

The GCC equity market experienced what many are calling a rollercoaster ride caused by recent market corrections in oil prices at the end of 2014. The recent developments, however, also resulted in more attractive valuations of well managed oil companies that have helped retain market confidence and reports indicate the 2015 market looks promising for investors. While oil will continue to account for a large portion of GCC revenues, the volatility in emerging-market currencies will create a shift in the market psychology of the region, and consequently the region will be poised to open its borders to economic competition in other non-oil sectors.

Domestic Sovereign Wealth Investment in Other Sectors: Long-term instability in the oil market will likely cause problems for the GCC’s economic outlook, but the region’s sovereign wealth funds indicate it is well prepared to compensate for the decline in oil revenues. Collectively, the region accounts for 37 percent of the world’s sovereign wealth funds, creating an opportunity for GCC investors to generate growth in sectors the GCC has not traditionally targeted. Many argue that sovereign funds will be the drivers of economic development in the region—in particular, the region’s focus on education and real estate indicates a push to leverage human capacity. Sovereign funds will play an increasingly important role in determining the regions economic trajectory, and taking into the account the surrounding area’s financial trends will ensure investors make the best possible decisions.

Increasing Foreign Investment: Continued free trade agreement (FTA) negotiations with the Association of Southeast Asian Nations (ASEAN), China, Australia, and Europe will allow the region to benefit from more open trade borders and establish strategic partnerships with regions that excel in areas the GCC is targeting. An FTA with Singapore, for example, went into effect at the start of this year that illustrates a commitment to enhancing bilateral trade between the two regions. Ongoing talks with nearby economies will streamline the trade of goods and services, and expand the GCC’s capacity for growth. In effect, the declining profitability of oil may actually accelerate economic reform that could remove restrictions on foreign investment and generate opportunities for the GCC to address its regional challenges.

Domestic Development via Bolstering Human Capital: The GCC will experience two catalysts in 2015 that will increase growth in non-oil sectors: the first is the UAE’s and Qatar’s upgrade to emerging market status in 2014. These states will receive a great deal of attention from foreign investors—that view ‘emerging market status’ as the “Wild Wild West of investing”—and may become critical elements to the GCC’s success across different sectors in the coming years. As the region’s markets become more flexible there will be increasing opportunities for the GCC to guide investments into areas it has traditionally left out. In fact, many argue that the booming markets will be most profitable through diversified approaches. This reality highlights the second factor to watch this year: the region’s focus on increasing human capital. Dubai, for example, struggles to attract expatriates because of rising living costs, and the residential markets in both Dubai and Abu Dhabi have experienced a growing ‘supply and demand’ imbalance. This indicates a low rate of middle class nationals seeking to establish professional networks in a region experiencing infrastructure growth in all sectors. Dubai responded to this mismatch by focusing on improving the quality of education and working with foreign investors to provide first-class education systems that compete with nearby regions. Similar approaches will help the GCC retain skilled nationals and attract highly capable professional that will improve demographic imbalances across the MENA region.

The GCC is prepared to see a great deal of success in 2015, but the region will need to maneuver its efforts to work against a reliance on oil and towards development in other sectors. The GCC expects increased investment across all economic sectors as it relinquishes restrictions on foreign trade; and the region has the opportunity to strategically plan infrastructure developments to retain regional talent. The GCC has the means and resources to maintain its position as one of the most attractive regions for the tech-boom and it will do so by becoming a leader in modern standards.

Disclaimer: These materials have been prepared by Amin Consulting LLC for informational purposes only and are not legal advice.  The material posted on this web site is not intended to create, and receipt of it does not constitute, a lawyer-client relationship, and readers should not act upon it without seeking professional counsel.

About Amin Consulting LLC: Amin Consulting is a uniquely positioned advisory and consulting Firm that, through our diverse team of Legal and Business experts, provides unique and niche services for Middle Eastern and United States based companies and investors.  Whether you are a U.S. Company expanding in the Middle East, or a High Net Worth Family from the Middle East looking to diversify or protect its assets, you have come to the right place.

Our team is compromised of professionals with decades of collective consulting, legal, and business experience–specifically between those two regions of the world.  Most of our consultants are Accredited and Licensed United States Attorneys as well as International Business Consultants.  That allows us to provide, not only expert advice, but also added value through vertical integration of these often interconnected services.

For more information or a free consultation, send us a message here!

GCC Moves Closer to a Unified Trade Mark Law

By: Eduardo Gonzalez

This year saw three states—Saudi Arabia, Bahrain, and Qatar—ratify the revised version of the Trade Mark Law of the Gulf Cooperation Council (GCC) initially published in 2006. The revised draft was released in February 2014 after being placed on hold in 2006 to renegotiate some of its provisions and its success in 2015 will depend on the three remaining states following suite.

The GCC Trade Mark Law is intended to apply to all six of the GCC states and seeks to provide a unifying law, rather than a unitary system, to protect the area’s trademarks. Instead of providing a standardized system for each state to abide by, the revised Law provides a “single set of provisions which will apply uniformly across all GCC states with respect to the registrability, registration and enforcement of trademark rights.” Although each state will need to model its own process, thereby requiring registration of a mark in each state to benefit from protection throughout the GCC region, the general principles to obtain a valid trademark will remain the same. Some of the key provisions include: the codified definition of what can be considered a trade mark, multi-filing provisions, examination and opposition processes, protection of well known marks, infringement claims, exclusivity provisions, and parallel imports. See also, GCC Trademark Law Coming Soon. These provisions will make litigation much more streamline and ensure that an owner of a mark is able to fully enjoy investment in their brand.

The Law itself is not self-enacting, however, and only three states have taken steps to ensure the law is given legislative weight. While the remaining states are expected to adopt the Law soon, the reality of Trade Mark Law in the GCC depends on each state taking legislative action to implement the unifying provisions. Passage of the GCC Trade Mark Law will no doubt improve the experience of many budding entrepreneurs, making their branding process more competitive, efficient, and predictable. Much of this success will be determined by interpretation and practical application; in order for the Law to make a real difference, the provisions will need to be treated in ways that promote the purpose of trademarks—to protect the source and the consumer of a commercial brand.

One immediate application for uniform trademark laws is to protect the efforts of a business owner to build their reputation in a market. In this way a consumer is also protected from inaccuracies in the information they receive from the goods they purchase. If, for example, a competing company were using brand similar to a successful venture in order to attract their rival’s customers in one part of the GCC, the senior user—the first person to register or use the logo—would be able to stop the company from continuing to unfairly benefit. While infringement cases are much more complicated than that, the message remains the same: a more unified system of recognizing and obtaining valid trademarks is a step towards protecting both consumers and entrepreneurs. Without a unified method of identifying valid trade marks—especially in an area experiencing a significant boom in their economy—you might well run into a scenario where a business owner in one state claims rights over a unique sound that is excluded from the definition of a trade mark in another state, thereby causing a contradiction in practice. And as a consumer, it is important to have the opportunity to rely on the brand’s honesty; as foreign investment continues to grow in the digital-tech age, there will be an increased pressure to monitor and evaluate intellectual property protections and other laws that promote responsible innovation in the GCC.

Disclaimer: These materials have been prepared by Amin Consulting LLC for informational purposes only and are not legal advice.  The material posted on this web site is not intended to create, and receipt of it does not constitute, a lawyer-client relationship, and readers should not act upon it without seeking professional counsel.

Doing Business in Saudi Arabia: Public Bidding on Lucrative Government Contracts

Saudi Arabia Wassem Amin Business

By Wassem M. Amin, Esq., MBA

The record FY2013 and FY2014 budgets announced by the government of the Kingdom of Saudi Arabia have received much media attention. The FY2014 budget of Saudi Arabia, for example, sets a record U.S. $228 Billion (SAR 855 Billion) in government expenditures. Foreign companies and businesses who do business with the Saudi Government quickly discover a very rewarding and lucrative market.

Overview

Key expenditures, as announced in a press release by the Saudi Government, will focus on “infrastructure, education, health, social services, security services, municipal services, water and water treatment services, and roads and highways. Moreover, the budget gives particular emphasis to science and technology projects and e-government.”

Specifically, key expenditures have been allocated in the budget for the following major sectors:

  • Education: US $56 Billion – approximately 25% of the budget. This will be used to finance the construction of 539 new schools and 1,900 existing school-construction projects as well the refurbishment of thousands of present educational facilities.
  • Health and Social Affairs: US $28.8 Billion.       This will be used to finance the construction of dozens of new hospitals throughout the Kingdom.
  • Infrastructure and Transportation: US $17.8 Billion – Key planned projects in this sector include finishing work on existing projects, completing construction on highly publicized economic cities, and construction of new sea ports and a cross-country railway service.

U.S. and foreign based companies who are unfamiliar with doing business in Saudi Arabia generally are advised to seek the assistance of a legal advisor who is familiar with the region’s unique laws and culture. Moreover, companies wishing to do business with the Saudi Government should be aware that, as with any national government, it may be a complicated and time-consuming process.   However, with the right guidance, those willing to invest the time and effort will find that there are no shortage of very financially rewarding opportunities – in both the public and private sector.

Rules and Regulations Governing Saudi Public Contracts

Generally speaking, public or government contracts in Saudi Arabia are governed by the Government Tenders and Procurement Law and its implementing regulations (the “Law”). With few exceptions, the Law requires Saudi government entities to procure products and services through a public bidding process. A government agency is required to prepare and advertise a Request for Tenders (“RFT”) and advertise it in the Saudi Official Gazette and in at least two local newspapers for a minimum period of either 30 or 60 days–depending on the value of the project.

The exceptions to the public requirement are relatively few. Exempt from the public bidding requirement, direct procurement applies to the following sectors: military and defense equipment; consultancy services; unique products or services; and urgent medical supplies in a response to an epidemic.

To be eligible to enter the public bidding process, the bidder must post a bank guarantee equal to 1% of the project’s value. Within ten days of being awarded the project, the winning contractor must provide the respective government agency with an unconditional performance bond equal to 5% of the contract’s value. Usually, the performance is issued by a Saudi bank and must be valid for the duration of the project.

Who is Eligible to Submit Bids?

The Law indicates that any bidder licensed to do business in Saudi Arabia is eligible to participate in the process. At first glance, it may appear that a foreign company that has undergone the licensing process in Saudi Arabia (discussed in previous posts) is technically eligible to bid on public projects. However, a thorough reading of the Law and its implementing regulations proves otherwise. The Law and its implementing regulations require the bidder to hold a variety of certificates that can only be held by a Saudi business – such as, but not limited to, a commercial registration certificate, a classification certificate, a tax certificate, a Saudization certificate, and a foreign investment license if the bidder has any foreign capital. Many of those required licenses and certificates can only be obtained if the bidder is at least partially-owned by a Saudi national.

Selecting a Local Agent or Partner

Therefore, the most common, and effective, way for a foreign company to bid on public projects is by establishing a partnership or agency agreement with a local business. A key issue for foreign companies then becomes how to identify a local business partner that, not only adds value, but meets the various requirements of the Government Tenders and Procurement Law. In our experience, identifying the right partner is oftentimes detrimental to a foreign company’s success or failure in Saudi Arabia. Substantial due diligence and vetting is a critical component of this process. Generally speaking, a local partner should have prior experience and a successful track record working with the government agency that is awarding the contract.

The challenge is that public information on private businesses in Saudi Arabia is rare, if not impossible, to find. Therefore, utilizing a legal or advisory firm that has first-hand experience in the region is oftentimes critical. An experienced advisor would be able to identify, and vet, potential partners in the region and assist the foreign company with negotiations and legal registration requirements.

Saudi Arabia has pursued an open and liberal investment policy by welcoming and encouraging both domestic and foreign investment. The objective of Saudi Arabia’s policy is to achieve diversification by gradually reducing dependence on one source of income. The massive infrastructure and expenditure projects announced by the Saudi government present opportunities for foreign companies in virtually every major sector. However, the cultural, political, and legal landscape is complex and varies dramatically from that of countries such as the USA or in Europe. Unaccustomed foreign companies or investors should seek out advisory or legal firms who are proficient and have expertise in Saudi Arabia.

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Disclaimer: These materials have been prepared by Wassem M. Amin, Esq. for informational purposes only and are not legal advice. The material posted on this web site is not intended to create, and receipt of it does not constitute, a lawyer-client relationship, and readers should not act upon it without seeking professional counsel.

Wassem M. Amin, Esq., MBA is an Associate Attorney at Dhar Law LLP in Boston, MA and is the Vice Chairman of the Middle East Committee as well as the Islamic Finance Committee of the American Bar Association’s International Law Section. Wassem has extensive experience in the Middle East region, having worked as a consultant in the area for over 10 years. Wassem currently focuses his practice on International Business Transactions and Business Immigration (EB-5 Regional Center and Investor Representation). For more information, please visit the About Us page or http://www.dharlawllp.com.

EB-5 Chinese Quota Retrogression: Analysis of Potential Impact and Recommended Solutions

Amin-Wassem-China-US-EB-5

By Wassem M. Amin, Esq., MBA

(Visit our Publications Page for a FREE PDF Download of this Article)

Over the past few years, the skyrocketing popularity of the EB-5 Immigrant Investor Visa program has fueled record demand from foreign investors.  The EB-5 Immigrant Visa allows foreign investors and their immediate family members to obtain permanent residency, providing an eventual path for citizenship, in exchange for a $500,000 to $1,000,000 investment in a job-creating enterprise.  The overwhelming majority of EB-5 foreign investors, over 80%, have come from China.  Allotted a maximum quota of 10,000 visas per year, the EB-5 Immigrant Visa is further subject to a numerical per country limit in the event that quota is met.   Known as “retrogression,” this limitation essentially works by creating a backlog in visa availability for immigrant investors from oversubscribed countries.

The U.S. Department of State cautioned in a December 2012 bulletin that projected demand of EB-5 Visas in that fiscal year may subject Chinese immigrant investors to retrogression.  Although that never came to fruition (not due to demand, but primarily caused by slow processing times), the Department of State renewed its caution alert again in December 2013.  Although the 10,000 visa-quota has never been met since the inception of the EB-5 Program, based on new statistics recently released by the United States Citizenship and Immigration Service (“USCIS”), it is now evident that the demand will surpass the available quota inevitably, perhaps as soon as this Fiscal Year 2015.  This no longer makes the likelihood of Chinese quota retrogression a question of “if,” but rather “when.”

The implications of Chinese quota retrogression are far-reaching and affect not only potential Chinese investors but the entire EB-5 industry, including Regional Centers, project developers, agents, and professional service providers such as attorneys.  This article will begin with a brief overview of the EB-5 program and how visa retrogression works.  It will then assess the potential ramifications of Chinese EB-5 visa retrogression for investors and the EB-5 industry.  Finally, it will propose solutions to alleviate the potential impact of Chinese quota retrogression on project developers and Regional Centers.

Background

In 1990, the U.S. Congress created the employment-based fifth preference (“EB-5”) immigrant visa category for immigrants who invest in and manage U.S. commercial enterprises that benefit the U.S. economy and create jobs. Allotted 10,000 immigrant visas annually, the EB-5 immigrant visa was designed to attract foreign direct investment into projects that would directly impact the economy, i.e., not merely passive investments.

Immigrant investors can apply for an EB-5 visa through two primary routes. The first route is through a direct investment into a qualifying “new commercial enterprise.” The second is through the Regional Center Pilot Program. The Regional Center Pilot Program allows USCIS to designate private or public entities as so-called Regional Centers to function as conduits or administrators of large or medium-scale projects funded, at least in part, by EB-5 investors. Regardless of which route is selected, the EB-5 Investor Visa allows foreign investors to obtain permanent residency in the United States conditioned upon an investment of a minimum of $1,000,000 (or $500,000 in a high unemployment or rural area) in a project which creates and sustains at least 10 full-time jobs for U.S. workers.

How Does Visa Retrogression Work?

Congress sets limits on the number of immigrant visas that can be issued each year. In order to adjust status to that of legal permanent resident, an immigrant visa must be available to the applicant both at the time of filing and at the time of adjudication. Visa retrogression occurs when more people apply for a visa in a particular category or country than there are visas available for that month. Retrogression typically occurs toward the end of the fiscal year as visa issuance approaches the annual category, or per-country limitations.  When an applicant files an immigrant petition, he or she is given a “priority date.”  The priority date is the date when the immigrant petition is properly filed with USCIS.  If, at the time of adjudication, an applicant’s priority date no longer meets the cut-off date published by the Department of State, due to retrogression, his or her case must be held in abeyance until a visa once again becomes available.

The EB-5 Program is allotted 10,000 annual immigrant visas.  However, that number is misleading because the quota counts an investor as well as  his beneficiaries, i.e.,if an average investor is married and has two children, the total number of visas counted towards the quota will be four.  In reality, the average number of actual EB-5 principal investors is around 3,000, substantially lower than the available quota.

Once that annual quota is met, the per country limitations on EB-5 visas will be imposed, creating a waitlist for applicants from oversubscribed countries.  Since Chinese applicants account for the substantial majority of EB-5 visas, they will be the ones directly impacted.  This backlog would essentially delay an investor’s ability to obtain an immigrant visa by a year or more, in addition to normal USCIS processing times for an I-526 (the Immigrant Investor Petition).  Therefore, if, for example, an I-526 petition normally takes 6-9 months, a backlog due to visa retrogression would extend processing times to an average of two years, if not more.

 What is the Likelihood of a Chinese Visa Retrogression?

In FY2013, 8,567 EB-5 visas were issued.  In the first two months of FY2014, over 6,700 EB-5 petitions are already pending with USCIS.  Absent Congressional action, the prospect of EB-5 petitions exceeding the annual 10,000 allotment is inevitable.  Once that quota is met, the per country limits will result in visa retrogression for Chinese investors, delaying their ability to obtain an immigrant visa by at least a year or more, in addition to the time it takes to process the I-526.

Potential Implications

In the long-term, the delay and complications of EB-5 processing will result in Chinese investors looking to other countries that actively compete for foreign investors, including Australia, Canada, and the United Kingdom.  Retrogression adds further strains on the EB-5 program which has already been plagued by extraordinarily slow processing times and delays by USCIS.  Faced with the prospect of waiting two or more years before being able to immigrate to the United States, a Chinese investor may decide to immigrate elsewhere.  Other countries will surely capitalize on visa retrogression to draw away potential investors.

In addition, the Chinese retrogression creates a significant conflict of interest between project developers, Chinese investors and immigration agents.  It also raises new ethical issues for an attorney representing the project developer or the Chinese investor.

From an investor’s perspective, an investor with children who are reaching the age of 21 may have incentives to delay the approval of the I-526 as long as possible.  Under the Child Status Protection Act (“CSPA”), commonly known as the “age-out provisions,” a child can immigrate as a beneficiary of a parent’s immigration application until he or she turns 21.  The CSPA freezes the age of children who are derivative beneficiaries of an I-526 petition while the petition is pending, but not once the petition is approved and awaiting the quota to become available for an immigrant visa.  This benefits a Chinese investor whose children are close to aging out.  Thus, it will be their benefit to delay the I-526 approval as long as possible.

From a Regional Center or project developer’s perspective, job creation projections and capital redemption timelines will be directly impacted by retrogression.  Capital redemption, or the investor’s exit strategy, is, essentially, the time period before which the investor can have his capital returned.  A protracted visa immigrant visa availability will tie up the investment money for a longer period of time.  Although that may seem like a benefit to the project developer, most current EB-5 investments provide for an exit strategy in which the developer sells or refinances the business, using the proceeds to repay investors.  A delay in visa availability will delay the developer’s ability to do so–since an investor cannot redeem capital before the approval of an I-829, which is the petition to remove conditions on investor’s permanent resident card.

Another potential implication is whether such a delay would impact the developer’s ability to access investor funds.  In a typical investment through a Regional Center, the investor’s capital is held in an escrow account until the approval of the I-526, at which point the funds are released to the developer.  Previously, an I-526 approval typically meant that the investor would be able to immigrate to the United States (or adjust their status) shortly thereafter because an immigrant visa was always available.  However, visa retrogression will delay that process by a significant period of time.  An investor, therefore, may dictate that the funds be held in escrow until a visa becomes available, not simply until the I-526 is approved.  Without alternate financing, this delay could essentially result in an inability to proceed with a project’s development and, ultimate failure.

From an attorney’s perspective, counsel for a Regional Center must recognize the additional securities disclosures that may result from visa retrogression.  Specifically, new risk factors for offering documents or Private Placement Memoranda would need to be disclosed.  Similarly, counsel for an investor would need to highlight the possible implications to their client.

Solutions and Proposals

Bridge Financing

However, the growth in EB-5 financing market has the creation of spurred specialized loan companies that address this very issue.  There are now several companies that provide specialized EB-5 bridge loans which allow a developer access to all or some of its anticipated capital.

Bridge or interim financing provides the opportunity for EB-5 project developers to take out short term financing to help construct and develop the project, then the EB-5 capital, as it is received, may replace that short term financing yet still receive credit for job creation by USCIS.

Moreover, in its latest Policy Memorandum, USCIS has specifically indicated that such financial arrangements are allowed in the EB-5 context.  In a May 20, 2013 Adjudications Policy Memorandum, USCIS stated, in pertinent part:

It is acceptable for the developer or the principal of the new commercial enterprise, either directly or through a separate job-creating entity, to utilize interim, temporary or bridge financing – in the form of either debt or equity – prior to receipt of EB-5 capital. If the project commences based on the bridge financing prior to the receipt of the EB-5 capital and subsequently replaces it with EB-5 capital, the new commercial enterprise still gets credit for the job creation [arguably the main requirement of the EB-5 program] under the regulations….Developers should not be precluded from using EB-5 capital as an alternative source to replace temporary financing simply because it was not contemplated prior to obtaining the bridge or temporary financing.

Tapping Alternative Markets

Prudent project developers and Regional Centers should hedge the risk of any impact a shortage in Chinese investors may cause.  Since over 80% of EB-5 investors are from China, even a small decrease in the number of investors may have an significant impact.  Creating an alternative pipeline of EB-5 investors from different regions is the key to ensuring continued and sustained growth in the EB-5 Program.


[1] Wassem M. Amin, Esq., MBA is an Associate Attorney at Dhar Law LLP in Boston, MA and is the Vice Chairman of the Middle East Division of the American Bar Association.  Wassem has extensive experience in the Middle East region, having worked as a consultant in the area for over 9 years.  Wassem currently concentrates his practice on Corporate Law, Business Immigration and International Business Transactions.  He has advised countless Eb-5 Investors and assisted developers in structuring USCIS-compliant EB-5 Regional Centers as well as sourcing investors throughout the Middle East.  For more information, please visit the About Us page or request more information on our Contact Us page.

Disclaimer: These materials have been prepared by Wassem M. Amin, Esq. for informational purposes only and are not legal advice.  The material posted on this web site is not intended to create, and receipt of it does not constitute, a lawyer-client relationship, and readers should not act upon it without seeking professional counsel.