NEW YORK CITY-It sounds like the name of a robot, but EB-5 is actually a largely beneficial—though technical—government program under which developers can procure project funding from foreign investors in exchange for a green card.
This was the message of a securities and tax lawyer, an immigration attorney and an investment professional—who are experts in this area—during a luncheon earlier this week in Midtown Manhattan. Sponsored by the Mortgage Bankers Association of New York, the presentation outlined how the program works, along with its benefits and drawbacks.
“The EB-5 Program has evolved into a low-cost source of alternative financing for U.S. based projects,” said securities lawyer Debbie Klis, of counsel, Ballard Spahr. “It’s popular because the return on investment that needs to be promised is low.”
Most investors that provide funding under EB-5 come from China, with that country providing 80 to 85% of such program participants, according to immigration attorney Kate Kalmykov, of counsel at GreenbergTraurig.
“South Korea is next, while Mexico, Brazil and the Middle East are on board too,” she said. “Those are going to become more popular.”
The program’s appeal lies in the speed at which it allows funders to immigrate to the US. “For the Chinese, it’s the fastest way to a green card and it’s a passive investment. EB-5 is the most flexible route to immigration into the US, and there’s no wait for the green card. In other categories, the process can take five to 10 years.”
There are two types of EB-5 structures: direct (or individual) investment, and regional centers. The latter is more popular, all of the speakers noted, with 90 to 95% of filed EB-5 proposals coming in with this structure. However, Kalmykov noted, “direct is making a comeback.”
In either case, investors must provide $1 million—or $500,000 with a “targeted employment area”—and create 10 full-time US-based jobs as a result of that investment. However, the establishment of a regional center can satisfy the job creation requirement, Klis noted. Also boosting the appeal of regional centers: the entity that creates one gets credit for both direct and indirect jobs, “which means many more jobs which means you can raise much more money and have a cushion to spare.”
The required ROI needs to be between .5% and 3%, “depending on how established the regional center is and the popularity of the project,” she said.
But participants need to be prepared for ever-changing regulations surrounding EB-5, as there have been several adjustments to the government program since Congress created the category in 1990, added Shalom Segelman, SVP of international affairs at the Extell NY Regional Center, a part of Extell Development Co.
“It’s a live beast, and anything done a year or two ago doesn’t necessarily work now,” he said. “So it’s important to be able to project and have the right team that can move when things change. People getting into it must know what they’re getting into. There are good projects and regional centers with good track records but if you want to do this, you have to have a game plan.” Added Kalmykov, “You want to work with an economist who knows EB-5, because investors are getting more savvy so they know what questions to ask.”
A memo from the government that came down on May 30 was “largely favorable” to regional centers, but the program is still subject to scrutiny so developers must “have disclosure documents and a business plan,” she cautioned. “And get a securities attorney, the SEC is getting involved in this process.”
Companies interested in the regional center structure have two options: create their own, or rent a center. There are 419 regional centers in existence, Klis said, though several speakers said anywhere from 10% to 40% of centers are active, creating takeover opportunities.
The value of projects funded by this program average $10 to 50 million, and $1 billion is now coming into the US each year for this program, according to Segelman, so there’s clear interest from the international investment community.
But how should a developer find these project backers? “Go to China and get them,” advised Segelman. “It’s dog eat dog out there so it’s important to have real relationships and not just rely on finders.”