The Thing Line Between EB-5 Legal Advice and Marketing Advice


H. Ronald Klasko

In advising regional centers and EB-5 project developers, I often
find myself providing advice something like this: “that’s perfectly
legal under EB-5 law, but it will never sell.” Even though my clients
are hiring me for EB-5 legal advice, I feel that I am doing less than a
complete job if I don’t provide the benefit of the marketing knowledge
that I have gained over the years. As I advise my clients, it does
nobody any good to prepare an approvable regional center application or
project template if no investors will be interested in investing.

In my experience, the investor’s primary interest is that the
investment project will result not only in getting the conditional
permanent residence but most importantly the permanent green card. Of
secondary importance is the likelihood of getting the principal amount
of the investment back in a defined period of time. Of far lesser
importance is any return on the investment. Especially in the China market, where most investors are working with
agents, many of them have developed a level of sophistication regarding
EB-5 legal issues. A project that meets the bare minimum legal
requirements may have little chance in the marketplace. Projects
relying on challenged economic methodologies (tenant occupancy or
visitor spending as examples) may have difficulty finding investors.
Investors like to see a “job cushion” (job projection in excess of the
amount required for the number of investors) – the more, the better.
Some EB-5 professionals – immigration lawyers, economists, business plan
writers, securities lawyers – have reputations in investor communities
that add credibility to the projects. 

Although it may not be first priority, investors generally do want to
know that they have a reasonable chance of getting their investment
returned in a defined period of time. This is the reason that the loan
model has become more popular than the equity model. Loan models with a
5 or 6 year term of the loan have better success in the marketplace
than loans of a longer term. It is for this reason that investors
generally prefer to be in first position among creditors.

Having the investment money placed in escrow pending the approval of
the I-526 petition adds a level of security to the investor. However,
it also adds a lengthy period – approximately 8 months – to the date
when the developer will receive the EB-5 capital. As a result, various
hybrids have developed, including “early release” (money sits in escrow
until a certain number of I-526 petitions have been approved and is then
released to the project) and “holdback” (an amount remains in escrow to
cover the possibility of 10% or 20% I-526 petition denials and the
remainder of the money goes directly to the project). These hybrid
escrow arrangements have met some resistance in the investor marketplace
and are generally considered only if the project is otherwise viewed as
very desirable.

Other factors also play into marketing success. Investors generally
do not like to see a project where EB 5 makes up virtually the entire
capital stack. Investors like to know that the developer has some “skin
in the game”. Related to that is the reputation of the developer
and/or the regional center. A regional center with many successful
projects (especially condition removals) or a developer with a very high
level reputation and many successful development projects is clearly a
plus. The administrative fee charged to the investor – often in a range
between $35,000 and $60,000 – can be an issue to some investors.
Finally, various subjective factors play a role. For example,
investment projects in certain cities are more popular than those in
other cities. Investment projects in certain industries may be favored
by certain investors, while others may prefer other industries.

Technically, a client who retains an immigration lawyer to provide
EB-5 immigration legal services is not contracting for marketing advice.
However, in my experience, the two are so interrelated that, by
necessity and as a matter of client service, sharing my accumulated
knowledge of the EB-5 investor marketplace becomes a critical part of my
advice to clients.

About The Author

H. Ronald Klasko is recognized by businesses, universities, hospitals, scholars, investors and other lawyers as one of the country’s leading immigration lawyers. A founding member of Klasko, Rulon, Stock & Seltzer, LLP and its Managing Partner, he has practiced immigration law exclusively over three decades.

Under his leadership, the firm was chosen with five other firms by Chambers Global in 2006, 2007, 2008 and 2009 as the top U.S. business, hospital and university immigration law firm. Ron, himself, was named as the world’s most respected corporate immigration lawyer (The International Who’s Who of Business Lawyers 2007 and 2008) and one of the country’s top immigration lawyers by clients and other immigration lawyers who said he is “revered for coming up with unique arguments that can save a client” (Chambers Global).

A former National President of the American Immigration Lawyers Association (AILA), Ron served as General Counsel of that organization for three Presidents and has been a member of its Board of Governors since 1980. He has served as National Chair of AILA’s U.S. Department of Labor Liaison Committee and Business Immigration Committee, and he served as National Chair of that organization’s INS General Counsel Liaison Committee, Department of Labor Liaison Committee, and the National Task Forces on Labor Certifications, H-1 visas, L-1 visas and Employer Sanctions. He presently serves as Chair of the EB-5 Committee.

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