In recent years the EB-5 program has grown at a rapid pace. With nearly 200 USCIS designated regional centers in existence and many more in the process of being adjudicated, EB-5 investors are often unsure of which regional center to choose for their EB-5 investment. The following questions can serve as a starting point by EB-5 investors in evaluating the suitability of a particular regional center for immigration purposes. Investors are also encouraged to consult with competent business, securities and/ or financial professionals regarding the viability of the investment.

  1. When was the regional center approved by USCIS, and has it gone through any amendments?
  2. Has the regional center completed any EB-5 projects?
  3. Have any of the regional center’s projects been reviewed by the AAO?
  4. What percentage of the project is composed of EB-5 financing?
  5. Will the project rely on bridge financing until EB-5 funds are transferred?
  6. Is the regional center affiliated with any government entity? Does the project have municipal or state support?
  7. How many years of experience does the general partner or principal in the investment project have in EB-5 projects?
  8. How many years of experience do the project principals have in the industry?
  9. How much experience does the regional center’s economist have in EB-5 projects?
  10. What economic model does the regional center employ?
  11. Are the jobs direct, indirect, induced or a combination?
  12. What is the total number of jobs that the regional center expects to create in the project?
  13. Is there a surplus in case any jobs are disallowed by the USCIS at the I-829 stage? How will they be allocated?
  14. How is job creation tracked by the regional center?
  15. How and when are investors notified that a particular project will not create the anticipated number of jobs?
  16. How are the investors funds used?
  17. Have any investors had to go through the process of filing the I-526 anew per the December 2009 Neufeld memo because a particular project within the regional center has failed?
  18. Is the instant project “pre-approved” by the USCIS?
  19. What are the total number of investors in the project?
  20. What would the investor’s place in the project be?
  21. Is the project conducted in phases?
  22. Are investors permitted to visit the project in question?
  23. What is the regional center’s area?
  24. Are the job creating project and the new commercial enterprise located in a Targeted Employment Area (TEA)?
  25. Does the regional center anticipate that any job creation will take place outside of this area?
  26. Does the TEA designation rely on the use of contiguous census tracts?
  27. Does the investor have to pay a fee to receive the prospectus or offering materials? Is this fee refundable if they investor does not wish to proceed with the project?
  28. What is the total amount required to be paid by the investor for participation in the project?
  29.  Does the administrative fee include the cost of I-829 materials?
  30.  If the I-526 is denied can the investor recoup their administrative fees?
  31.  Does the regional center use an escrow account?
  32.  How much of the investment amount is refunded if the I-526 is not approved?
  33.  What is the expected rate of return on the investment?
  34.  What has been the rate of return on previous investments through the regional center?
  35.  What are the risk factors associated with the investment?
  36.  What is the exit strategy from the investment?
  37.  Does the regional center work with experienced immigration, securities and corporate counsel?
  38.  Has an action for securities violations/ fraud ever been filed against the regional center?
  39.  What is the form of the investment—limited partnership, LLC or other?
  40.  What is the current or prospective structure of ownership and control of the commercial entity(s) in which the investors are making their capital investments?
  41.  Do investors have a right to representation on the Board of Directors?
  42.  Does the regional center provide quarterly, biannual or annual reporting of the status of the investment to the investors?
  43.  Has the regional center complied with the annual USCIS reporting requirement?
  44.  How many of the regional center’s I-526 petitions have been approved, denied or withdrawn?
  45.  Do any of the regional center’s projects have pending Requests for Evidence?
  46.  How many of the regional center’s I-829 petitions have been approved, denied or withdrawn?
  47.  Has the center experienced any “material change” issues, i.e. have their projects deviated from the projections in the original business plan?
  48.  Has the regional center received any I-924 denials on amendment or project proposal requests?
  49.  Has the regional center’s designation ever been the subject of a Motion to Reopen?
  50.  Has USCIS ever issued a notice of intent to terminate or has a formal termination ever been issued for the regional center?
Tags: EB-5, EB-5 Project, I-526, Regional Center
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Photo of Kate Kalmykov Kate Kalmykov

Kate Kalmykov is based in our New York and New Jersey offices and has over two decades of experience in business immigration matters. Kate currently Co-Chairs the Global Immigration & Compliance Practice at Greenberg Traurig. In this role, she works with employers of

…

Kate Kalmykov is based in our New York and New Jersey offices and has over two decades of experience in business immigration matters. Kate currently Co-Chairs the Global Immigration & Compliance Practice at Greenberg Traurig. In this role, she works with employers of all sizes across a variety of industries in understanding and complying with the immigration laws relating to the hiring and retention of foreign talent. Specifically, her practice focuses on supporting clients and advising them on temporary and permanent residency immigration options for multi-national executive, business, scientific, and information technology personnel. In addition, her practice provides support to companies in the global transfer of personnel. Known by her clients for her out-of-the-box thinking, responsiveness and hands-on approach, Kate is often called upon to assist in developing immigration options and strategies in the most unique circumstances and to respond to complex Requests for Evidence (RFEs), Notices of Intent to Deny (NOIDs) or to appeal denied cases. Likewise, she has also been instrumental in developing employer compliance programs for DOL related filings including H-1Bs and PERMs, as well as for I-9 employment eligibility verification. To this end, she develops and conducts nationwide I-9 compliance trainings and policy manuals for human resources personnel, advises on best practices for E-Verify employers, provides guidance on avoiding immigration-related unfair employment practices claims and has defended and minimized penalties in immigration-related government audits. Kate regularly works with professionals from the firm’s labor, employment, tax and benefits groups, to provide strategic planning on immigration issues within a cross-border framework.

Kate also has deep experience working on all aspects of the EB-5 immigrant investor program. Kate has worked with real estate developers, private equity funds, and other organizations on applications to designate new EB-5 Regional Centers, applications for pre-approval of EB-5 projects; having projects adopted by existing EB-5 Regional Centers; structuring projects to be EB-5 compliant, the sale of existing EB-5 Regional Centers, preparing template I-526 petitions and advice on structuring direct EB-5 projects. Pursuant to the requirements introduced under the EB-5 Reform and Integrity Act, Kate works with EB-5 Regional Centers, EB-5 Projects, Overseas Migration Agents and Broker/ Dealers to develop internal programs for ongoing compliance and to prepare USCIS I-956, I-956F, I-956,G, I-956H, I-956K submissions. Kate has represented thousands of investors in obtaining their green cards through EB-5 regional center projects, as well as direct EB-5 investment opportunities. She also represented and structured the largest EB-5 offering in the Program’s history and has over the course of her career structured over $12 billion in EB-5 deals.

Within the field of immigration law, Kate is a well-known speaker and author. She is often called upon by various media outlets to comment on topics of business immigration law including the Real Deal, the Wall Street Journal, and Law360. Kate has appeared on numerous TV programs related to immigration law including CNN, the Stoler Report, Vietface TV, and China Business Network. Kate is also a prolific writer on the topic of immigration and has been published in immigration practice handbooks for the American Bar Association, American Immigration Lawyers Association, ILW, and in news periodicals that include the New Jersey Lawyer, the New York Law Journal, the New Jersey Law Journal, USA Today, GlobeSt.com, and the Commercial Observer. At the request of the American Bar Association, Kate co-authored the book “What Every Lawyer Needs to Know About Immigration Law,” a guide for non-lawyers on immigration law practice. She has sat on numerous bar association related committees including the American Immigration Lawyers Association EB-5 Practice Committee, the New Jersey Business Immigration Coalition and has chaired the American Bar Association’s, Committee on Immigration and Naturalization, Section of Administrative Law since 2011. Kate has been recognized in various legal surveys including Chambers Global, New York Super Lawyers, the New Jersey Law Journal who ranked as her as a “New Leader of the Bar,” (formerly 40 under 40) in 2012, NJBIZ “Best 50 Women in Business,” 2019, National Law Review, “Go-To Thought Leader: Immigration Law,” 2022, and Lawdragon 500, Leading U.S. Corporate Employment Lawyers, 2020-2022.

Kate is devoted to pro bono matters and has spent extensive time helping clients fleeing conflict and persecution with asylum applications, applying for and obtaining Temporary Protected Status and Humanitarian Parole.

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