Before an EB-5 immigrant investor files a Form I-526E Petition for classification based on an investment in a Regional Center sponsors investment, the Regional Center must first file an application with the Secretary of Homeland Security (Form I-956F) for each particular investment offering in an associated New Commercial Enterprise (“NCE”). The Form I-956F application must provide comprehensive information regarding the proposed investment, its projected job creation, offering documents, potential risks, and compliance with applicable securities laws.
Business Plan and Economic Analysis
The Form I-956F application must include a comprehensive business plan for a specific capital investment project. In addition, the Regional Center must provide a credible economic analysis regarding estimated job creation, based on methodologies that are economically and statistically valid and transparent.
The Form I-956F application must also include any documents that are required by law to be filed with the Securities and Exchange Commission (“SEC”) under the Securities Act of 1933, as well as any documents required to be filed with the securities regulator of any state.
Investment and Offering Documents
Regional Centers must provide the relevant investment and offering documents associated with the investment offering. These include subscription agreements, investment agreements, partnership agreements, operating agreements, private placement memoranda, and term sheets.
The required documentation also includes biographies of management, officers, directors, and any person with similar responsibilities, the description of the business plan that will be provided to potential immigrant investors, and any marketing materials used, or drafts prepared for use, in connection with the offering.
As appropriate, this investment and offering documents must contain information regarding several important areas.
First, the documents must disclose all material investment risks associated with the New Commercial Enterprise (“NCE”) and the Job-Creating Entity (“JCE”).
They must also disclose any conflicts of interest that currently exist or may arise among the Regional Center, the “NCE”, the “JCE”, or their principals, attorneys, or individuals responsible for the recruitment or promotion of these entities.
The required disclosures further extend to any pending material litigation or bankruptcy, as well as any material adverse judgments or bankruptcy orders issued during the most recent 10-year period, whether in the United States or another country. This requirement applies when such matters affect the regional center, the “NCE”, any associated “JCE”, or any other enterprise in which a principal of any of these entities held majority ownership at the relevant time.
Fees and Compensation Related to the Offering
The investment and offering documents must also provide information regarding compensation paid in connection with the offering of securities to immigrant investors.
This includes disclosure of any fees, ongoing interest, or other compensation paid or to be paid by the Regional Center, the “NCE”, or any issuer of securities intended to be offered to immigrant investors, to agents, finders, or broker-dealers involved in the offering of securities to immigrant investors in connection with the investment.
The disclosure must also include a description of the services performed, or that will be performed, by such persons that entitle them to receive the relevant fees, interest, or other compensation. In addition, the name and contact information of any such person must be provided if that information is known at the time of filing.
Securities Law Compliance Policies and Procedures
The Form I-956F application must include a description of the Regional Center’s relevant policies and procedures, including those related to internal and external due diligence.
These policies and procedures must be reasonably designed to cause the Regional Center and any issuer of securities intended to be offered to immigrant investors in connection with the relevant capital investment project to comply, as applicable, with the securities laws of the United States and the laws of the applicable states in connection with the offer, purchase, or sale of securities.
Securities Law Compliance Certification
Finally, the Regional Center and any issuer of securities intended to be offered to immigrant investors in connection with the relevant capital investment project must provide a certification regarding securities law compliance.
Following a due diligence investigation, the certification must state that, to the best of the certifier’s knowledge, their respective agents and employees, as well as any parties associated with the Regional Center and the issuer of securities that are affiliated with the Regional Center, are in compliance with the securities laws of the United States and the laws of the applicable states in connection with the offer, purchase, or sale of securities.
The business plan application requirements for Regional Center investments extend beyond the submission of a business plan itself. Before immigrant investors file Form I-526E Petitions based on a particular investment offering, the Regional Center must provide detailed information concerning the specific capital investment project, estimated job creation, securities filings, investment and offering documents, material investment risks, conflicts of interest, litigation and bankruptcy matters, compensation arrangements, due diligence procedures, and securities law compliance.
These requirements create a detailed framework for the information and documentation that must be provided in connection with each particular investment offering through an associated New Commercial Enterprise.
This is part of a series on the EB-5 Reform and Integrity Act of 2022. To read more in this series, click here.
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