Under the EB-5 Program, regional centers are established based on their projected ability to raise capital from foreign investors to develop projects and create jobs in the United States, thereby generating economic growth. Form I-924, which a prospective regional center must submit when seeking formal designation from United States Citizenship and Immigration Services (USCIS), must be accompanied by a project proposal to allow adjudicators to determine whether the center is capable of meeting these goals. A project proposal must additionally accompany any I-526 petitions submitted by the regional center or its associated investors.
Regional centers are required to submit documentation to USCIS regarding three types of projects depending on the stage of planning for the project in question. These three types are hypothetical projects, actual projects, and exemplar projects, which are outlined and discussed in detail below.
Hypothetical Projects versus Actual Projects
A hypothetical project is a project outlined in an I-924 submission but not accompanied by a comprehensive business plan compliant with the guidelines from the Matter of Ho decision, which is required for an actual project proposal. Hypothetical projects may include those that have already sought necessary licenses and engaged in other forms of concrete planning as well as truly hypothetical projects, as the distinction from USCIS rests not on the actual status of the project but on whether the submitted documents contain an appropriate business plan.
A hypothetical project proposal outlines the potential impact of a project, including how it will promote economic growth and job creation in the targeted region, and generally how it will accomplish the goals of the EB-5 Program. However, it might not contain the level of detail necessary in an actual project proposal, which includes verifiable evidence of the granting of any necessary licenses and permits and the commitment of funds toward the project, as well as other information to illustrate that a specific project is ready to be implemented.
If a regional center submits what it believes to be an actual project proposal but USCIS finds that the proposal lacks evidence or is otherwise too deficient to be considered actual, the regional center might still be approved based on the hypothetical potential of the project. While actual project approvals are included with the designation letter for a regional center and receive deference in future adjudications, hypothetical projects are simply useful for initial designation decisions. While I-924 submissions can contain a mix of actual and hypothetical projects, the majority of regional center designations in recent years have in fact been based on hypothetical projects.
Hypothetical and actual project proposals are both meant to illustrate how a regional center will raise capital and create jobs. Although these proposals differ in their level of detail and in their significance for later adjudication decisions, both demonstrate to USCIS that the regional center is capable of fulfilling its roles under the EB-5 Program. Both should contain sufficient information in the form of economic projections, market data, and financial analyses to show that the project in question will create the requisite number of jobs. In an actual project proposal, this information would be present through a business plan compliant with Matter of Ho guidelines.
Investors should keep in mind that this distinction between hypothetical and actual projects applies only to regional center I-924 proposals. A successful I-526 petition must be supported by a comprehensive business plan detailing an actual project. Regional center representatives should likewise remember that a center must submit not only a hypothetical or actual project proposal but also a detailed operational plan for the regional center itself when filing the I-924. A business plan for the regional center is a necessary element of the application for designation.
An exemplar project is an actual project for which the regional center files a sample I-526 petition along with its I-924. For this reason, regional centers with actual projects often file a sample I-526 in an effort to ensure future petitions will receive deference as a result of the approval of the exemplar project. Deference can be crucial in protecting investors if policy changes affect EB-5 Program requirements, for example, and can also cut down on wait times for petition adjudication, as USCIS has no need to review an unchanged business plan in subsequent I-526 petitions after having approved an exemplar. As such, an exemplar project can be a powerful tool in attracting investors.
The exemplar project proposal must include a business plan that comprehensively outlines all elements of the business. It must describe the business and its structure, analyze the target market and competition and show how the business is financially capable of succeeding in that market, accurately calculate the number of indirect and induced jobs the business will create using verifiable economic models, and show that the business has been approved under any relevant federal or state licensing programs. USCIS will review all the organizational documents provided with the sample petition to ensure the project is in compliance with program requirements and able to facilitate the immigration of foreign investors under those guidelines.
Submitting an exemplar project proposal is therefore a logical option for regional centers with an actual project in development at the time the I-924 is filed.
While hypothetical, actual, and exemplar project proposals play different roles in facilitating regional center designation and project approval, regional centers must include with each proposal as much relevant information about a project as possible to encourage a successful adjudication. The decision in Matter of Ho provides regional centers and investors with a useful checklist of what USCIS looks for in a successful business plan, but the possibility of changes within the regional center program and the EB-5 Program itself means practitioners should strive to remain aware of evolving plan requirements.