Navigating the EB-5 Paper Trail: Project Documentation and Compliance

One of the most common problems noted by immigration attorneys and investors is the poor quality documentation provided by the regional center or direct business about finances, project construction and spending. Poor-quality paperwork can lead to delays with immigrant petitions, incur fines to the RC and its investors, and even more unforeseen consequences. Keep this in mind when proceeding to raise capital. 

A good rule of thumb is to ensure someone who is not involved in the everyday business of the project or investments can read and understand project documents, and that updates about the progress of the project are distributed regularly amongst investors. Additionally, professionals assisting with the preparation of an EB-5 project must be ethical, have extreme attention to detail, and knowledgeable about the trends and recent legislative changes in the EB-5 program. 

Once the project is defined and structured, all associated documentation is compiled into an offering package. This includes the comprehensive business plan, economic report (for regional center projects), offering documents, TEA analysis (if applicable) and associated documents and exhibits. In a regional center filing, an “I-526E template” will also be prepared by the immigration counsel for the project.

In addition to project related documentation, EB-5 investors must submit their own documentation to verify source of funds and other eligibility requirements. It is advised that EB-5 investors retain their own immigration attorney (not the same immigration attorney as the investment issuer) to complete their source of funds documentation and file their immigrant petition.

Below is a list of documents which must be submitted by the regional center. Many of these forms are incredibly new, meaning that USCIS has continued to identify flaws in the forms, and has slowly released updates and clarifications pertaining to these documents. Keep in mind that these documents should be filled out alongside your legal counsel to ensure that all information provided is correct and adequately demonstrates the RC’s dedication to job creation and economic development.

I-956, Application for Regional Center Designation

One document needed to acquire regional center designation is multiple versions of form I-956, “Application for Regional Center Designation”. The Reform and Integrity Act (RIA) replaced the previous form I-924 with the I-956. This form must be filed at least 120 days before any sales of securities can take place, or with an amendment before the regional center changes its management, organization, or administration.

USCIS asks that specific evidence be submitted with an I-956 petition, including: 

• Maps or illustrations of the geographic area of the RC
• An economic report on the geographic area of the RC
• A written policy document showing all procedures to monitor NCEs and JCEs
• Written policy documents for program compliance
• Information about all persons involved with the RC

I-956G, Regional Center Annual Statement

RCs must file the I-956G annually to maintain their regional center status and demonstrate a) compliance with the program, b) progress on their ongoing projects, c) verify any TEA status and eligibility for set aside categories. This document must include evidence of all activities taken on by the regional center, the number of jobs created by their EB-5 projects, total capital invested in the RC, and more. This document allows USCIS to judge whether the RC can continue its operations or whether it needs to be audited and possibly terminated. 

I-956F, Application for Approval of an Investment in a Commercial Enterprise

This document must be submitted for any project which has not yet started soliciting EB-5 capital prior to March 15, 2022. This document must be filed before any investor’s I-526E is filed for investment in a specific project. This document describes 

• The type of the new commercial enterprise being created
• The operation structure of the RC
• The type and operation structure of the job creating entity
• Information about the investors associated with the project
• The type and cost of the project
• A disclosure document of all investment risks and policies regarding compliance

This must be submitted as a part of a regional center’s I-956 package.

Investors may begin investing in new regional center projects and submitting individual Forms I-526 once the regional center receives a processing receipt for Form I-956F from USCIS.

I-956H, Bona Fides of Persons involved with Regional center Program

This document must be submitted by every person who is involved with the regional center, alongside a biometrics appointment. This form acts as a supplement to the regional center’s most recent I-956 application.