Mr. Lindley has represented developers and entrepreneurs in the financing of their projects through utilization of capital raised through the United States Citizenship and Immigation Services (USCIS)) EB-5 immigrant investor program. Under the EB-5 program, non-U.S. residents or citizens may invest $1,000,000, or in certain targeted employment areas (TEAs), $500,000, in new U.S. commercial enterprises or troubled businesses which, as to each investment, create a minimum of ten (10) new U.S. jobs. In exchange, the foreign applicant investor is afforded the USCIS’s fifth preference, employment-based (hence, EB-5) evaluation of his or her application to become a lawful permanent U.S. resident.
Collaborating as corporate counsel with immigration co-counsel handling the immigration-specific aspects of investors’ applications on Form I-526 of the USCIS for permanent U.S. residency, the firm structures the financing parameters, and drafts the requisite offering memoranda and related disclosure documentation. This financing vehicle is deemed to be the offering and sale of a security under federal and state securities laws. Accordingly, in order for the issuer to be exempt from registering the securities offered and sold to foreign investors under the EB-5 program, issuers may rely on, among possible other exemptions, Regulation S of the Securities and Exchange Commission, whereby the offering and sale of the issuers’ securities to the foreign investors is accomplished by conducting the transaction with solely non-U.S. citizens, in completely offshore transactions. Under Regulation S, the SEC has no jurisdiction over the offering so long as and to the extent that the transactions are properly conducted completely in accordance with the parameters of Regulation S. The issuer entrepreneurs thereby avoid the expensive and lengthy securities registration process under the Securities Act of 1933 that would otherwise apply (without regard to other possible exemptions that may be available (e.g. Regulation D)), and target the capital raise to what has demonstrably been a large and very receptive overseas investor marketplace. To date, the EB-5 immigrant investor program has resulted in foreign investment in the U.S. economy measured in billions of dollars in such projects as hotels, residential and commercial real property development, agribusiness and even in Vermont’s ski resorts.
Visas available to immigrant investors under the EB-5 program are limited, but offer well-advised developers and entrepreneurs an opportunity to access what has been historically a lower cost of capital by a generally motivated investor pool eager to invest in the U.S. economy in exchange for the economic and political stability that obtaining U.S. residency represents to them and their families.