Hi everyone. This is Sam Silverman, managing partner of EB5AN. I’m joined today by my partner, Mike Schoenfeld, and Ron Klasko and Dan Lundy of Klasko Law. Today, we’re going to be talking about expedited EB-5 projects, discussing the processing time, risk evaluation, and overall procedure to obtain expedited status on an EB-5 project. Before we jump into the slides, we’re going to do a quick poll so we can get an idea of where we should best focus our time today. And during the webinar, if you have any questions, please use the chat box to submit them, and we’ll address as many questions as we can at the end of today’s webinar. So, please quickly direct your attention to the poll, and then we’ll get started.
Great. All right, so, we’ll start going through the slides now.
Okay. So, the first thing we want to quickly mention is our new TEA [targeted employment area] map. We just launched it a couple of weeks ago. It instantly provides TEA eligibility status using all four accepted USCIS methods and also provides an automated TEA report completely free. So, if you’re looking to see if your project does qualify as a TEA, check it out on our site eb5an.com. The second item, which also includes a lot of information on the new TEA qualification rules, is our EB-5 guidebook, also completely free. You can download a PDF from our site, eb5guidebook.com, or if you want a hard copy, it’s also available on Amazon as well. Okay. So, first, we’ll spend a few minutes talking about EB5AN and Klasko. So, as I mentioned, I’m Sam Silverman, managing partner of EB5AN. I’m joined today by my partner, Mike Schoenfeld. And I’ll let Mike quickly jump in and introduce himself.
Hi everyone. Thanks a lot for taking the time today. I know we’ve had a lot of questions and there’s been a lot of talk about what EB-5 expedite means, and we’re excited that we’re able to host Ron and Dan to run through some of the specifics. So, a little bit more information about us, and our backgrounds are on the slides, but the short summary is both Sam and I come from institutional backgrounds. We worked at the Boston Consulting Group together, and we’ve worked at many other leading financial and consulting firms.
A little more information about EB5AN: we’re a national regional center operator consulting firm and EB-5 fund manager since 2013. Our regional centers sponsor more than 1800 investors from more than 60 different countries. And we’ve been focused exclusively on EB-5 since 2013.
Our regional centers cover more than 20 different states. Here’s a short map that kind of highlights our coverage area of where we can sponsor any type of EB-5 project and another map showing, kind of generally, where a lot of our EB-5 investors come from. And most importantly, this demonstrates that investors from a wide variety of backgrounds from around the world consistently find value in our investment approach and EB-5 approach. As I mentioned earlier, we have the great honor of having Ron Klasko and Dan Lundy, noted immigration attorneys and experts in the field, joining us today. And I’ll let them jump in and share a little bit about their background and experience as it relates to expedited EB-5 projects.
Sure. Thanks, Sam and Mike. This is Ron Klasko. In addition to what you see on the screen, I guess it’s worth mentioning that I served five terms as the chairman of the EB-5 committee of the American Immigration Lawyers Association. For the last two years, I’ve been sharing ALA’s litigation task force because the way of the world these days is that litigation, including in EB-5, has become very important. So, that’s something that we’ve, you know, certainly developed a lot of experience in. Our EB-5 team is one of the most experienced and largest EB-5 teams in the country.
We have three parts of the EB-5 team. One group works with investors on I-526s and I-829s. Another group works on compliance, regional center and developer compliance. And the third part of our group works with developers and regional centers and putting together projects, filing for exemplar approval of projects. And lately, as I mentioned, a fourth part of the EB-5 team deals with EB-5 litigation.
I’m Dan Lundy. I’m a partner at Klasko Immigration Law Partners. I also am one of the most experienced EB-5 attorneys in the industry. I have helped a number of projects get approved and get expedites. I am presently on the best practices committee and public policy committee of IIUSA and the litigation subcommittee, because, as Ron said, a lot of our business these days is suing USCIS over bad decisions or delayed cases. So, litigation has become a pretty important part of EB-5, unfortunately.
Great. That’s great. Thank you, guys. So, we’ll now kind of jump into the content of the presentation, starting with an overview of what is an expedite—how does it work? And Dan and Ron will kind of take the lead on this section. And then, me and Mike will kind of follow up with some questions that we think investors and developers would likely have on the content.
Okay. This is Ron. I’ll start off. And we’ll go back and forth a bit, but when we’re talking about expedites, there’s some things we need to understand right up front. Number one is any type of immigration petition can be expedited, but especially when we’re talking about EB-5, there are very, very, very few EB-5 projects that actually have been expedited. Many of you who are listening may have heard me talk about all sorts of EB-5 subjects and creative ways of doing things and what the requirements are. And if you do this, it should be approved. Can’t do any of that when it comes to expedites. There’s no exact standards, there’s no right to an expedite, there’s no fee for an expedite. There’s no specific timeframe. It’s rarely approved—probably the lowest chances of approval of anything anyone will ever file in the immigration world.
If it’s denied, there’s no right of appeal or review. So, this is something that, when we work with clients, we make sure they understand that this is a lot of work. It can be very expensive. It can take a long time to put it together with no realistic estimate of the chances of success. When you’re thinking of doing an expedite, you need to figure out what exactly it is that you are seeking to expedite. Are you seeking to expedite the approval of a project? A part of that, then, is if a project is not a part of an existing regional center but rather there’s going to be a new regional center created for the project, are you looking at trying to get the regional center expedited? Are you looking to try to get the investors in the project expedited, which is a separate issue? So, you need to figure out what exactly you’re trying to get expedited. It could be one, two, or three of those things. And then what are the issues are in getting them expedited? But that’s my thoughts as an overview. Dan, I don’t know if you have any thoughts on that or if we should go to the next slide, which talks about the USCIS criteria for expedites.
I would just point out that, you know, even though we’re talking about a project, any investor in a project can get an expedite of their particular petitioner application if their personal circumstances, you know, dictate. So, it’s not just about projects—the investors themselves, for humanitarian reasons or whatever other reasons they have, they may be able to expedite their own individual petitions as well.
Great. That’s a great distinction, Dan.
So, Dan, on the next slide, Dan, why don’t you talk about what the USCIS criteria are for expedited approval of an EB-5 project?
Sure. And, you know, I would note that USCIS actually previously had a few more eligibility grounds, but those were changed about a year or so ago. These are the current expedited criteria. We’re on the next slide, guy. Here we go. USCIS can expedite any application or petition. They generally will consider the expedite if there is going to be a severe financial loss to a company or person. The company or person can not have created the situation that created the risk of severe financial loss. So, if you didn’t file the application on time, you didn’t request the application on time, or, you know, you structured something in a way that you were almost never going to get it done in time, these are factors that will be considered, again, granting an expedite.
Urgent humanitarian reasons. Now urgent, humanitarian reasons typically are, you know, related to the investor’s and their family’s medical issues. You know, somebody is dying, somebody is sick in the hospital. Humanitarian reasons sometimes, though, can apply to a project. Let’s say, you know, after Hurricane Katrina, you know, there were areas entirely wiped out. You were rebuilding houses there—that may have been a ground for an expedite at some point for humanitarian reasons because people were homeless. You know, similar disaster relief–kind of situations can be humanitarian reasons, but generally, we loop those together with the next one, which is a compelling U.S. government interest. So, basically, the project is in the national interest, and it’s in the interests of the United States or one of its agencies to have it approved quicker. This is for, when we’re talking about expediting a project or a regional center, this is the particular criteria that we focus on a lot. The other is clear USCIS error—if they made a mistake and we want them to re-adjudicate something, you could ask them to expedite consideration of it. Fortunately we don’t deal with this one that much.
Let me expand a bit on the two that are most likely to be the basis for a project expedite, and that is the severe financial loss and the U.S. government interests. Severe financial loss is something where you’re really trying to show that this is something that completely affects the survival of the project and maybe of the company, but it was no fault of the company. It wasn’t a matter of the company delaying the filing and therefore we’re in this situation, but through no fault of the company, if there’s no expedite, then the project will fail. One we did, we were able to show that not only would the project fail and over 8,000 jobs would be lost, but a whole section of a city that was going to be built around this project would end up not happening if this project failed.
So, it was severe financial loss to the company, to employment, to the city. And, you know, these are very difficult to prove—there’s sometimes more work showing this than putting the whole project together. There are issues when you’re dealing with the financial loss question of whether the money is… if the securities documents have an escrow provision. So, in other words, if the money is sitting in escrow and it will not be released until the approval of the project, then you can show that, well, the approval of the project is really, really critical for the money to be released. But the flip side of that is the project itself decided to put the money in escrow. It could have chosen not to put the money in escrow, and that can be an argument that the government has for not agreeing to the expedite.
So, that’s my thoughts on the severity of the financial loss that’s necessary to get an expedite on a compelling U.S. government interest. I don’t know how many of the people on the call are immigration lawyers who do EB-5, because if you’re an immigration lawyer, in addition to doing EB-5, you may also do national interest waivers as a way of getting a green card. Well, this is somewhat similar to that—in a national interest waiver or in a compelling U.S. government interest, expedite, you have to show that, you know, first of all, why is this particular project absolutely critical to some really important government interest? And that’s not always easy to prove. And usually, you’re going to need at least one or two or more letters from government agencies saying that—it’s not enough for you to say that.
And then the next issue is, well, if this project is really critical to a government interest, an important government interest, why is the expedite critical, which may be a whole different issue. And what happens to this critical government interest if the project is processed within normal timeframes? And one of the things that Dan mentioned is that the criteria were changed recently a year or two ago to read the way you see in red on the slide. And it says, “such as urgent cases for the Department of Defense or other public safety.” Does that mean that those are the only compelling U.S. government interests? What if it’s something of interest to the U.S. Department of Agriculture or the U.S. Department of Energy or whatever? Does it have to be national security or public safety? And the short answer is, I think, we don’t know that, but that language was added on, and it didn’t exist before. So, those are some of my thoughts on how you go about trying to prove either severe financial loss or compelling U.S. government interest.
Great. Thanks. Thank you, Ron. We’re now going to talk a little bit more about the process and procedure for how to go about trying to obtain expedited status.
So, as Ron said, part of the issue, part of the way you prove—or a substantial part of the way you prove—a compelling government interest is if you get a letter from a government agency requesting the expedite of the project of the project. It’s not always easy to do. They have to have a pretty serious interest in the project. We’ve noticed that letters from senators and congresspeople are nice to have, but USCIS doesn’t take them terribly seriously. They’re, you know, they find that congressional people are politically motivated, and they really are less interested in what a congressperson has to say than a federal government agency. So…but this is a very, very, very important piece. And if you have one of these, you have a good chance of getting an expedite.
If you don’t, you have a much, much higher burden, but as Ron was saying, you know, there are a bunch of factors, but when we file an expedite, we don’t rely on just a single factor. We try to weave in as many factors as we can. At the end of the day, we have to tell a compelling story, right? You have to get USCIS, who, you know, frequently doesn’t want to grant anything, to agree to look at something quicker than they normally would. So, it has to be compelling from a storytelling point of view. It’s gotta be well-documented, not just for the government request letter, but if you’re documenting a, you know, U.S. government interest, you need to back it up with studies and economics and data to show what the need is and how the project meets the need.
So, it’s really quite an involved project. You put together a whole package, craft the whole story, you know, every bit helps, right? It’s sometimes sympathetic factors that don’t necessarily fall within the criteria but give the nudge over the edge. Like, you know, you make the officer want to help you. SO, there is an art to it as much as a science to it. Once you put this whole package together, you submit it to USCIS. And in our case, the IPO—at the time we do the expedite, they’re deciding whether or not to expedite. They’re not really evaluating the project. And, you know, realistically, USCIS never actually looks at, or should be, judging the investment risk through a project. They disclaim it kind of like U.S. immigration attorneys. Next slide. One question that we’ve gotten quite often, and I’m sure many people listening we want to know is, so how do you actually get these letters?
Is there a proven path? What’s the best strategy? What would you advise, just generally, around that? So, most of the time, if you have a project that isn’t a national interest, you’re usually in communication with some government agency anyway, right? You’re, as part of your business, you are, you know, networking with the agencies and the people that have an interest in it. And that’s generally how you get access to the government agency. You know, if you’re getting bonds, or you’re getting government back loans, or you need government approval of a project, you know, you generally have access to those agencies. It depends a lot on the project and, you know, the connections of the developer and whatnot to try to get those contacts and get to the right people who are going to write that letter on behalf of the agency. It’s not easy. I’ll be honest. It’s not easy.
Yeah. I can’t ever recall, you know, when you put together both national interest expedites and, what I mentioned before, national interest waivers, I can’t ever recall something where I said, “Hey, it would be a really neat idea to, say, you know, just try to show this in the national interest.” And we’ll go try to find some official at some government agency. It doesn’t work that way. The client presumably has already developed, as Dan said, that relationship with the government agency, and the client is going to put us in touch with the appropriate person at the agency. Now, with all that said, a lot of times, you’re going to run into a situation where no matter how supportive the person is at the agency, he may not have authorization to put something on the letterhead of the organization or to write something on behalf of the organization. And certainly, a letter from somebody simply saying, “I work at this agency, and in my opinion, this is really important” is a heck of a lot less valuable than something saying, “I’m speaking on behalf of the agency, and the agency thinks this is really important.”
And to follow up on that, Ron, what types of levels of employees or directors of these types of agencies are typically the ones that are going to be, you know, writing, signing off on these types of letters? Does this have to be the cabinet-level secretary, or is it more common that, you know, this type of letter is going to come from, you know, somewhere lower in the pyramid?
Yeah, definitely more common than it’s going to come from someone below the level of the cabinet secretary. I can’t recall having one where we had the secretary sign off. However, it may be that the person of some supervisory level within the agency still needs to get authority above his level, and that’s for them to decide. That’s not for me to decide. But I can say two things. It’s never come from the secretary, and it’s never come from a low-level employee.
Got it. Got it. Okay, great. Now we’ll shift gears a little bit and kind of talk about this from the perspective of the individual investors.
Let’s go through some of the points on this slide. So, it is certainly true that when USCIS agrees to expedite it, there’s two things. It is not saying—number one is, it’s not saying that we think this is a great investment for somebody to make. They’re not saying anything positive or negative. They don’t have the authority. They don’t have the ability to judge how risky a project is. So, it’s completely neutral on that. Secondly, they’re not making a judgment on whether the project is approvable under EB-5 law and regulations. However, of course, if you get an expedite, hopefully fairly quickly after that, you’re going to get an adjudication, hopefully a positive adjudication. And that’s the stage at which the immigration service does evaluate whether the project complies with EB-5 rules.
The slide mentions that expedites on I-526 are of greatest interest to people from countries especially, you know, countries not including China and Vietnam, countries that have no quota backlogs, because it’s certainly a difficult argument to make that if I’m in a ten-year quota wait, it’s critical that the immigration service approves my I-526 tomorrow, because of it approves it tomorrow, I still have a ten-year quota wait. So, mostly, expedites are relevant to investors in non-quota-backlog countries. The key at the bottom I actually want to take some issue with is, I think… so, I think you can make a good argument that a project that is expedited may, in some ways, be less likely to have a material change that could adversely affect the EB-5 investors because, if you have a TEA project that is going to be waiting three or four years for a I-526 or I-924, it’s going to be waiting years to be approved. There’s more and more time for things to change. I mean, just in the normal course of events, you know, as we often say, business plans are not statues, and plans change. Well, there’s a lot greater chance that something is going to change if it has three or four years to change, as opposed to if we get an expedite. And the person is going to be at the I-829 stage much, much quicker, at which a material change doesn’t affect them.
Perfect. So, Ron, it sounds like the summary to me on this is, if a project gets an expedite, it doesn’t actually say anything about the underlying project itself, and the likelihood of a creating the jobs or the risk profile or anything specific related to the deal other than it meets one of the criteria of a being in the national interest or something else. Is that a fair summary?
Yes. I think it is. Yes.
Yeah. I think, guys, what an expedite actually means is, so USCIS grants an expedite, it means that, okay, we’re going to put your application ahead of the line, and within 45 days or so, we’re going to get it on an adjudicator’s desk. Once it’s on an adjudicator’s desk, they process is normal, right? So, if they’re going to issue an RFE, they issue the same RFEs. They’re going to take the same amount of time.
They’re going to do the same background checks that they would’ve done anyway. They don’t actually speed up the adjudication. All that the expedite does is move you to the head of the line and cut off the, we call it the shelf time—the time your application is sitting on a shelf, doing nothing great.
And I think there’s been a lot of confusion about that, what exactly it means and what the benefits are. And that’s a great way to describe it—[an expedite] moves it to the front of the line, but everything else is adjudicated in the same way in the I-526 and I-829. In everything you have to meet the same rules for the benefits.
Yup. We’re going to, we’re going to go into kind of step-by-step mechanical timeline process. Dan, I know a lot of our listeners are interested in that, so we’ll break that down in the next couple of slides.
I want to start with a caveat, though. Anytime we talk about processing times with USCIS, we have to say there’s no guarantees because USCIS is inherently unpredictable on processing times. What they do today they may not do tomorrow. So, I don’t want anybody to take my statement of the processing time as a promise, because, you know, if it doesn’t work out that way, I don’t want to upset anybody. So, we know this is a very simplified view, graphical view. You can definitely go into a lot more detail here on the step-by-step nuances. This was meant to keep it a simple graphical representation. Okay. So, you know, how long it takes to put one together—that depends on how long it takes you to get your supporting documents and get all your people online.
But, you know, realistically, it takes a couple of weeks to a month or so, or more, if you’re slow in getting your documents, to put one of these together—it’s a big package. If we are going to… if we’re talking about a I-924—you submit the I-924, we like to actually file the I-924 of the I-526, get a receipt notice, and then file the expedite with a receipt number. You can file them concurrently. We worry that people in the mailroom just might not notice. So, that’s why we’d like to do it that way. Although, true story—the couple of times we’ve submitted an expedite—we usually submit the expedite—we have follow up, you know, a couple of weeks later with USCIS to find out if they’ve gotten it. Often, they haven’t, and we resubmit it.
So, it’s like a little game with the IPO. But yeah, we like to do it, well, once we have a receipt number to make sure it actually gets matched up with the file. Once they actually get the expedite request, they—again, no guarantee—but their protocol is they will take action and make a decision on that expedite request within about 45 days. The decision that you get—you either get a letter that says, “Yes, we’ve agreed to expedite,” or “No, we have not agreed that.” There’s no appeal, there’s no reasoning. They don’t say, you know… it’s not like a denial, where they have to spell out the reasons that they’ve denied. They just say, “Sorry, no.” Once they’ve agreed to expedite, again, it’s about 45 days that they will get your application or petition in front of somebody who would adjudicate it, and then, the adjudication from there, you know, it takes its normal course.
You know, we’ve seen everything from 22 days to quite a lot longer—to six months, 10 months, your average time. It depends also if there’s an RFE, how long you take to respond to the RFE—we write a fair amount of that. You know, they give you 90 days to respond to an RFE. If you take the whole 90 days, it adds 90 days to the processing time, once you respond to an RFE. So, what we typically see is that, you know, within a month or two or three of them agreeing to expedite the case, they will look at it. They will issue an RFE, if they’re going to issue an RFE, or issue an approval. Once you respond again, timing is variable, but, you know, sometime within 45 days to three months of responding to the RFE, we typically see a decision. So, it does materially cut down, you know, from two+ years to, on average, you know, four to eight months.
And Dan, one follow-up question on that—if you do decide to strategically separate out the initial project, filing with the I-526, I-924, kind of the project-detailed filing, and then you get a receipt assigned to it, and then you send in, separately, the expedite request… in that separate request, is there just typically, like, a letter submitted with, you know, kind of the reasoning, why this project should be an expedite, and then you attach the receipt notice as an exhibit? And, you know, are you mailing it to the same address, and, you know, is there any kind of… there’s no special form, obviously. So how do you… what’s the mechanical submission for that kind of untraditional—it’s not a formal form filing, so how do you deal with that?
So, for individual applications and petitions, the process now is you apply through the USCIS case inquiry system. You basically submit an electronic request to expedite. They then email you and ask you for documents. If we’re talking about a project, we still generally submit it via mail to IPO.
Got it. Got it.
Yup. Okay. So, we’re actually going to skip the next slide, which is just kind of the normal I-526 processing timeline. Most people on the call are probably very familiar with the different steps of the normal process, and we’ll move straight to how that timeline is different if there’s an expedite involved. So, we’ll skip over this. And so, Dan, I’ll let you kind of jump in and kind of talk mechanically about how this would impact an individual investor’s timing of receiving a green card.
As we said, you know, if the average processing time is two to three years and we drop it to four to 10 months, that’s the difference, right? That’s the only difference. The forms take the same amount of time, the 24-month conditional residence period is always 24 months. Then, you file the I-829, but unfortunately, you’re taking three, four years, right? The good news about this is it starts your conditional residence period faster, right? Like, we used to, you know, when USCIS took six months for the process of I-526, every deal had an escrow account until I-526 approval. When they started taking a year and a half, two, three, four years for the process of I-526, that just became commercially impossible. So, you know, you can’t have a project that needs the money and can wait four years to get it.
It just doesn’t work out. So, there’s generally no longer escrow money. That means your investment is invested for a shorter period of time because you have to maintain your investment through the 24-month conditional residence period. But you don’t get to that point. You don’t even start the 24-month period until you get I-526 approval, and either adjust status or get your immigrant visa from the consulate and then enter the United States, or get your initial green card, if you adjust that. So, it can cut a couple of years off the time that your money has to be at risk, which is a nice thing—excellent for investors from backlogged countries. So, there is some benefit to having an expedited petition. I mean, it certainly gives you a little bit more confidence—if the petition has been approved, you know, in a year or two, three, or four years, there’s less material in less possibility for material change.
You know, if the original project is completed and comes back and the money has to be redeployed, there’s just less of a chance for, you know, RFEs on what’s happening with the money. Now, we’ve actually seen [that] USCIS recently has been issuing RFEs that say, “Well, you filed this three and a half years ago. Tell us what the status is just, you know, because we delayed so long—we’re now going to ask you what’s going on.” That sort of processing eliminates that—the downside to expediting, for anybody from a backlogged country, is that it limits your protection for aging children. Generally, your child can only immigrate with you until your child turns 21. But the way we calculate the child’s age at the time of visa is available. We subtract the number of days that the petition was pending from their age. So, if your petition is pending for years, that means your kid could be almost 25 and still immigrate with you. If it’s processing for months, it can be three months, 29 days. So, there’s actually an advantage to longer processing time for people with kids that might age out in-backlog countries.
Got it. Thank you, Dan. One question that, you know, that I’ve thought of related to that situation for investors from Vietnam or China, backlogged countries, currently is, you know, as you know, USCIS has recently noted that, you know, not only are those countries backlogged, but they’re actually going to actively, you know, focus on countries that are not backlogged with respect to pending investor petitions. So, if I’m an investor from China and I file now in an expedited project, on one hand, you know, that project is quota-expedited, but at the same time, USCIS has said that, you know, because I’m from a backlogged country, you know, they’re not going to prioritize applications from my country, China. So how, you know, how does it match up?
That’s an interesting question. I honestly don’t know which would control, but I think if you request an expedite and, you know, the investor requests an expedite, I think they would weigh the two factors, but I think they would be likely to, you know… if they agreed to the expedite, I think they would be likely to honor the expedite, although I can’t guarantee that at this point, because we just haven’t seen what they’ll do. Yeah, you know, some people are in favor of that decision of theirs on how to process cases, and some people aren’t. You know, I personally find that USCIS has a history of making policy changes EB-5 without warning and then applying them retroactively. So, to me, you know, the longer a petition is pending, the greater the risk of USCIS, you know, just reversing course on something. So, I don’t think it’s a great idea for somebody to be waiting four or five years for I-526 approval. So, I do still think that there’s some benefit, although the benefit is substantially less than for somebody who could actually get a green card.
Yup. And so, that kind of brings up another question, which is the, kind of, retroactivity, right? So, you know, how does, in your experience, how has USCIS, kind of, applied expedited treatment, right? In some cases, it’s a new project. There aren’t any investors who have subscribed, the project works with Klasko, they file expedite, you know, with great support, they get it approved, and then they start bringing in investors, and, you know, the timeline’s pretty clear, right? No investor joined before expedited approval was given. But, you know, let’s say it was a different type of project that, you know, had already started, you know, submitted, you know, 30 or 40 investors. And now, you know, some of the factors changed, and maybe there’s some government interest that has now come up, and the project’s now decided to go for expedite and does get it—you know, have you seen, or if you’ve seen it all, you know, how does that type of an approval, you know, impact people who’ve already filed in the same project? Or is it only, kind of, you know, new investors following the granting of that treatment?
No, I mean, so you would request the expedite for everybody to be included. If you have 50 investors who’ve already filed petitions, you’d request they be included. There’s no reason they wouldn’t. They might all have to send a letter to the IPO saying, “I’m part of this project, please expedite my petition.” You know, every I-526 is its own proceeding and nobody else, not the regional center, not the other investors, not the NCE, is a party to it, even though, in reality, it’s all the same project and they’re sharing all the same documents, but USCIS makes us submit the same documents in every single case, instead of one. So, the same is true if you expedite it. If you have a bunch of people who’ve already filed, they may very well have to all send a one-page letter saying, “Yeah, we’re part of that expedite over there.” But yeah, there’s no reason that they wouldn’t grant them to all pending petitions.
Got it. Got it. Okay. Thank you. That makes sense. Mike, go ahead.
All right. Well, I think… do we want to shift over and jump into some of their evaluation portions of these projects?
Yup. And I think, Ron, if you could just mute, I think we’ve got a little background noise from your side. That would be good.
Great. All right. Great. So, I think that was a really helpful overview on what an expedite actually means, the mechanics of it, how it works. And the next thing that we want to talk about is just general across projects, which is the risk evaluation. If you think that this framework looks somewhat familiar, it’s because we’ve gone through this before. The key risk factors in an EB-5 project do not change just because it’s expedited. So, the way that we like to think about it is that there’s two key buckets of project risk. You have the financial risk, which is, what’s the likelihood that if you’re an investor that you’re going to get your money back as promised and that the project is going to be successful from a financial standpoint? And second is the immigration risk. So, if the expedite is approved, that’s great. And you may have the exemplar approved through that expedite, but then you have to think about the likelihood that the project is going to meet all of the requirements of the job creation side and follow through with what it said to ensure that all of the I-829s are approved.
And these two factors are the same whether a project is expedited or it’s not expedited. The next two areas on here, investor due diligence and risk versus reward, are more of how investors can think about how they want to approach the project that they end up going into, both protecting themselves and making sure they fully understand all of the risks in the project. And then, every project has many different factors that you have to consider—different risks and rewards in terms of the return, the timeline. And in terms of the expedite, the likelihood of getting the capital back, the likelihood of job creation, all of those things need to go into balance. So, as an investor, how do you think about all of those categories?
And in addition to that, obviously, you know, every project is going to have risk, right? The most important thing is to really understand what questions you want to ask for the project to make the most informed decision possible, right? You’re never going to be able to reduce the risk to zero because no project is gonna have zero risk, right? So, you’re always going to be balancing risk versus reward. And, you know, as you kind of evaluate one project versus another, you always want to make sure that you’re getting the most up-to-date financial information and doing as much diligence as you can to make the most informed decision before you decide to commit financially to, you know, to a process.
So, the first key area is the financial risk of the project. And this is the side of the world that both Sam and I came from before going into EB-5—evaluating investments and understanding the capital structure of projects, both real estate and operating businesses. So, the main thing to think about as an investor is, what’s the chance you’re actually going to get your money back if you’re investing in either a loan or an equity-style project? And some of the factors you think about is, for the project as a whole, what’s the chance it’s going to be done and completed, and the likelihood that there’s enough other capital available to actually get the project finished outside of EB-5. So, that fits into how much of the capital stack is EB-5. Where does it fit in the capital stack? Is it the senior debt? Is it mezzanine debt?
Is it preferred equity, common equity? How does it fit into the deal? And where is that in the risk profile of the deal? And the next is, how is the developer or the project sponsor actually going to have a liquidity event and get out of the project when it’s time to repay the EB-5 investors? There’s a lot of projects that you can put a ton of money into and get them built. But if there is no viable path for exit or for positive cashflow… let’s say it’s a project that is expedited and is in the national interest, and it’s not economically viable. How would you rate that in terms of the safety of the project and of getting your capital back? And then, one of the next ones are, certain guarantees are allowed within EB-5. This is an immigration-based question, but one of the most common ones that we see and we think is important is a construction completion guarantee, or the knowledge that the deal is actually going to be completed.
And someone backing up, saying, “If we find the $20 million in EB-5 that we’re looking for, the rest of the $80 million in the project is also going to be available to finish the construction and get operations going. So, there’s several different types of guarantees, including I-526 denial guarantees and things like that. But the overall way that an investor needs to look at the financial side of this is it doesn’t matter whether a project is expedited or not—that doesn’t actually affect the financial risk in the project. It’s much more important to evaluate the project on its merits. Now, if you’re an investor and the most important thing to you is being very likely to get your green card in four months, and you don’t care if you ever see a dollar back of your $900,000, then that’ll probably tip the scales to where you absolutely want to go into an expedited project. But it’s very important, if you want to receive your money back, that you’re also evaluating the risk profile of that project itself from the financial aspect or working with a trusted advisor that can assist with that.
Yep. And one other thing to mention as well is it’s not usually binary. It’s not usually, you know, “Yes, this project was successful” or “No, you know, no, it wasn’t [successful]” when it comes to return of capital and preservation of capital, right? Typically, you know, sometimes a project, you know, is going to be able to repay you exactly on time, right, based on the initial projection. Oftentimes, you know, the project doesn’t completely fail, but it just takes a lot longer than was anticipated to, you know, to repay some or all of the capital, right? So it’s not all or nothing, typically. So, you know, you really have to evaluate, you know, realistically, you know. The project, of course, is going to show you in their materials what they think, you know, a reasonable projection is. And then, it’s the investor’s job to, you know, get updated financials, ask different questions, use Google, look around, you know, and see, all right, do I believe that what, you know, projections and information that I’ve been presented with, do I think those are reasonable, you know, or do I think they’re not reasonable?
And if I think they’re not reasonable, then how do I think the outcome of my investment would vary, you know, if I have different assumptions, right? For example, you know, if a project is telling me that they’re building homes, and they’re trying to build 300 homes, and they’re telling me they can build 100 homes a year, and they’ll be done in three years… well, you know, if I look online and I see, well, in this town, you know, of all homes in the last year, only 20 have been sold well, is it realistic to think that these guys are going to sell 100 per year? You know, probably not, right? So, then, if they’re only selling maybe 20 or 30, how long does it take to sell out the project, and what is the impact of that on my investment and available cashflow to pay me a return or return my capital?
Right? So, that’s kind of the thinking that you want to go into when you’re evaluating these projects. And in the key point, on the bottom of this slide, you know, again, you know, when you’re looking at an expedite versus a non-expedite in general, right, a compelling government interest or, you know, the financial loss that Ron described earlier, you know—that usually means that that type of a project is not able to obtain traditional private financing, right? That’s why they’re going to qualify for expedited treatment, and effectively, what that does is provide a government subsidy, right? EB-5 is a government-related program, and providing a faster processing time effectively means that project with expedited approval is going to be more attractive to investors because it’s going to be faster, right? And so, that’s really important to understand that these projects are typically ones where traditional private market financing isn’t available, and that’s why they’re going to be more likely to qualify for expedited treatment.
Especially on the financial loss side. There can absolutely be projects that align with the government interest where there is other capital available, and that can happen, but it is critical to understand where the money would come from if EB-5 is not available and why that EB-5 is needed in the project, just like any other project that you would be looking at as an investor. Why is the EB-5 going into the capital stack? Where does it fit, and what other capital is available?
Yep. Yeah. I mean, as you know, most people understand, you know, they’re saying there is no free lunch, right? You’re going to get faster approval, but you’re going to take on a little bit more, you know, risk, differentiated risk, probably, from other EB-5 projects, but, you know, there’s no [return without risk].
So, the next key area that all EB-5 investors are focused on is the immigration risk—the factors that go into successfully obtaining the temporary green card, the conditional one, and then having an I-829 approved and having the conditions removed. So, the way to think about this one is that you need the project to be successful and create the jobs and to allow the investor to go all the way through the process, where it could be four or five, six, seven years until that final I-829 is adjudicated. Some of the factors that I would look at—if you do have an expedited project approved, that does mean that you’ve taken out the immigration risk of that I-924 not being approved. If there is an exemplar expedite approved, that means that project has already been approved by the government, which is a great checkmark.
Next, the project actually has to happen for those jobs to be created. So, that’s where you get to the next level of, you know that the project is already approved from the perspective of the initial stage—now are you going to see that project all the way through and have the jobs actually created? So, you need to make sure to work with a good regional center operator that’s going to be around for the next five to ten years to continue reporting on the project, managing that entire flow, and also working with a proven operator or developer that’s actually going to be able to get the project to completion and then operate the hotel, both for the immigration reason and then tying back to the financial reason.
Great. Great. Thank you, Mike. All right. We’ll shift gears now and talk a little bit about investor diligence and some of the types of questions that investors should be asking project developers.
Exactly. And this point really ties to those last two as an investor. We know many EB-5 investors are qualified investors, very sophisticated, and they can do the diligence themselves, and they’ll go deep into the weeds of the project and really understand it. And that’s great if the investor operates in that capacity, but there’s quite often investors that are not financially savvy in the sense that they’re not professional investors and they don’t operate in that area. And it could be worth hiring a professional broker dealer or investment advisor or a securities attorney to look at the documents and make sure that they truly understand what’s under the hood in the project as an investor. The first things you should do is read the offering memo and the business plan, make sure everything is current, and if it’s not current, ask for updates. If you’re reading something that’s three years old, figure out what’s actually going on today, and make sure everything matches in an expedited project. Chances are it is current because that expedite would have recently been approved, if it is approved, but make sure that you are looking at the most up-to-date information.
Also, as an investor, you should never be afraid to ask questions—put together questions the same way that a private equity firm would do diligence on a project before they think about investing into it. And if you’re looking at documents that say things are going to happen at certain times and it’s historical, check to see if that has actually happened. Just to hammer that home, always feel free to ask more questions—as the investor, you’re putting in $900,000, and you’re making this decision one time for your family to move to the United States and to secure the green card. Understand everything you can in the project. And don’t be scared to take your time and make the decision to find a great project where they are going to provide transparency and treat you well as an investor in their project.
Yup. And to kind of describe that aspect of a project a little bit more, again, you know, transparency is critical, right? And especially in the current COVID-19 environment, you know… things were a lot different six months ago for hotels, right? And were a lot different six months ago for, you know, pretty much any operating business anywhere in the world. So, you know, given that if you’re looking at, you know, documents or materials that are dated 2019, before COVID existed, then you definitely want to get updated information, right? What’s happening with the most, you know, current set of quarterly financials? You know, has there been any supplement issue to the PPM? You know, what’s going on? How is the project dealing with or dealt with, you know, impacts of COVID since, you know, since it became an issue, right? Then, again, as Mike mentioned, ask questions—we can’t emphasize that enough.
If you haven’t made a list of, you know, at least 10 or 20 specific questions after reading the documents, then, you know, you haven’t done a thorough enough job and know enough about the project before you’re putting in $900,000. You really need to—and again, it’s not just “ask the question and then, you know, get on a phone call and see what the answer is from someone on the project”—it’s “get a list of questions and then have them, you know, explain and point to references in the documents that address your questions,” right? If they’ve done a good job putting together documents on the project, all of your questions, or most of them, should be addressed somewhere in the materials, right? You might not be able to find them, or they might not be clear on your initial reading of the documents, but they should be mentioned in the document somewhere. And so, a good example of, you know, a good project is, you know, you send over a list of questions, they respond and tell you what page of what document information related to that question can be found, right? And then, you review those specific areas, and then you get on a call or then you discuss, you know, follow-ups that you have related to that information, right? That’s kind of the typical, you know, qualified investment approach that investors should be following.
And the last point we’re going to hit on in the risk evaluation piece is risk versus reward. And this applies to every aspect of the project in terms of rate of return—some projects are going to pay a higher rate of return to investors, and there may be additional risk that comes with that. There may not be any additional risks with that compared to a different project that’s only paying a very low rate of return. So, it’s understanding that most aspects of the project fall on a spectrum. As Sam mentioned earlier, very little is binary—it’s all about where on the spectrum of risk and reward certain things fall. And that includes, with the expedited petition, if getting the green card fast is your number one priority, then trying to find an expedited project that is still safe from the other factors is probably your top priority.
But if you are an investor where an extra year and a half to you is not as important as ensuring you get that $900,000 back, then you may skew towards one of the most conservatively structured projects that you feel the best from a financial side, and you may not care that it’s not expedited, and you’re willing to wait that additional year and a half or two years. So, that happens, just across the board, with many different factors. And one of the key takeaways from our presentation today, what we want to emphasize, is that the expedite applies to a very small portion of the timeline of the project, which is it gets your petition to the front of the line in terms of it being adjudicated. But you do also need to consider many other factors in the deal as you’re going through the selection process of your EB-5 investment and always ask questions and make sure you understand where things fall on that spectrum. And there’s no right or wrong of how much risk you’re willing to take in certain areas or where you want to be conservative. You should just know, going in, where you would fall on different areas and make sure you find a project that aligns with what you’re looking for.
Great. Thanks, Mike. So, we’re now gonna talk about two hypothetical case studies, and then we’ll open it up for questions. Okay. So, first thing, these two case studies are hypothetical. They’re not based on real projects—we’re just using these to kind of illustrate two potential compelling cases for expedited approval and how to look at the financial immigration risk aspects of both of these. So, the first one is an addiction treatment and rehab facility. And we’re going to say that it’s located in Baltimore, in the suburbs, and it’s going to be treating the opioid epidemic. I’m sure some of you saw the recent Purdue settlement, $8 billion, that was just announced the other day. So, this is a real issue, billions of dollars, thousands of lives at stake, clearly impacting the national interest, you know, in the health care and safety of, you know, thousands of U.S. citizens, right?
So, letter of support—the secretary of Health and Human Services or, you know, someone else high up in the organization has signed a letter describing the opioid addiction as a public health crisis, cites a number of studies, and basically says that, you know, “We need more treatment facilities like this one that’s being proposed.” Total project is $22 million—$18 million is coming from EB-5 and 20 investors, $900,000, it’s in a TEA, and there’s $2 million from a county bond that’s going to be floated. And $1.4 million federal grant and a million dollars of developer equity, right? So, how do you evaluate this project, right? And we’re just going to assume here that this project has already gotten expedited approval. So, first, EB-5 is 80% of the total capital. So, that’s a huge percentage, and it doesn’t look like the money is replacing financing that’s already in place.
And that the project is relying on all 20 people to be found for this deal to work. There’s only 5% developer equity. So, not a lot of money in the game for the developer on the line. You know, the repayment exit is unclear for this type of a project. The opioid crisis is fairly recent, and there really haven’t been a lot of sales or refinancings for this type of asset. So, it’s unclear how the money is going to be available to repay the $900,000 for these investors. And these investors are coming in as a loan, right? So, you know, their loan is going to come due, and they are going to need to get the $900,000 back or the loan would be in default. Then, again, you know, change in political landscape—you know, this is a priority, obviously, for the current administration. But, you know, that might change in the future. Maybe it’s not likely to change, but, you know, this is going to be largely dependent on, you know, government and insurance dollars being used to pay this facility. And so, you know, if there’s a change in insurance reimbursement or government policy, or if this epidemic just quickly resolves itself, then, you know, that’s going to be a problem for this project, given that, you know, it probably doesn’t have another use case.
All right. Now, the second hypothetical expedite. So, Dan kind of mentioned a little bit about this situation earlier—you know, building 2500 affordable single-family homes, Gulf Coast, Louisiana, following the hurricane.
Nothing to do with this hypothetical, by the way, that was just a random example.
Right, right. No, I mean a random example that we happen to expand on here. So, again, the secretary of HUD [Housing and Urban Development]’s signed a letter saying that the storms have displaced a lot of people, and, you know, they’re in need of more permanent resident structures available in that particular area, right? So, this project’s bigger—$312 million. Again, EB-5 large portion as a loan, there’s a federal grant, there’s a city grant, and a small amount of equity. So, again, major risks—number one, there’s just a lot of EB-5 that’s needed, not clear that it’s replacing other bridge financing that’s available. So, if you don’t find all the investors, you might have a shortfall in the capital stack in this project. And we’ve worked on a number of master plan community projects, typically, in those types of deals. The break-even point is, you know, kind of- 60, 70, 80%.
So, most of the profit, therefore—and money that’d be available to, you know, be distributed as profit—isn’t going to be there until the last 20, 30% of the homes are built, which means that, you know, to break even, to be able to repay all the EB-5 loan capital, you’d have to build probably around 2000 homes of the 2500 and sell them, you know, before you’d be able to repay all the EB-5 loan capital. So, that’s a big if, right? 2000 out of 2500 over many years—that’s a large assumption. And then, again, you know, most of the people buying these homes are going to be first-time home buyers. And so, they’re only gonna really be able to buy homes using government subsidized loan programs—Fannie Mae, Freddie Mac, et cetera. And so, you know, if those programs are changed, or borrowing requirements, qualifications are removed or altered, then, you know, all of a sudden, now a lot of the people who could be buyers now are not buyers. And then, you know, the sales projections would change dramatically, and the project would be in serious financial jeopardy. So, these are just—again, these are completely hypothetical. These are not based on any type of real or actual projects that we’re aware of that have happened. So, keep that in mind. But they’re illustrated in terms of what to consider when evaluating a potential project for risk and how the capital structure is structured with EB-5 as a part of it.
And I think that we want to shift over to the Q&A, but Ron and Dan, are there any final takeaways that you want to provide before we jump into the Q&A section?
I mean, I would just say that, you know, expedite or no expedite, you have to evaluate the investment risks and the immigration risk. The expedite isn’t a guarantee, but an expedite is also not an indicator that there’s something wrong with the project or it’s more risky, right? Like, you really have to go through the same process, whether there’s an expedite or not an expedite, look at the same thing. An expedite is nice, but it’s only one factor.
Great. Great. Thank you, Dan. All right. We’re now going to shift gears and talk about questions that have come up. So, hold on a second, and we’ll pull up some of the questions that have been asked. If anyone has any additional questions, please use the chat box and send them in. Now we’ll try and cover as many as we can.
And one thing is, we’re not going to cover specific project questions on, do you think my project will qualify for an expedite with these factors? Please reach out to all of us if you have specific questions, either Dan, Ron, or us for other project-specific questions, but we will try and go into more general expedite questions that are not case-specific to the viewers.
This is a question for Dan. So, other than, you know, the two case studies that we briefly discussed, can you share, generally, you know, some other examples of expedite projects that you guys have worked on in the past?
So, first question is one for Dan. Can you share some other general examples without naming names?
I was on mute there. Yeah, I’m generally not at liberty to discuss the client matters because they’re confidential, and they’re client matters. So, I really can’t give any details.
Okay. Nope, no problem. Okay. Next question. Let’s see here… got number of questions. “In your experience, in the four to ten months of processing period for expedited projects, for investors in those projects, would you say most that that is actually accurate and that most investors who are going into an expedited project typically hear back with either an approval or an RFE in that window of time?”
Yeah. So, yeah, typically, we’ve seen a little bit better than that, but yeah, somewhere… I would say somewhere between three months and six months is probably closer to average. 10 months is definitely in there. Again, a lot of it depends on if you get an RFE and you take the full 90 days plus the 60 days you get with COVID to respond.
Then, yeah. It’s going to take longer, you know… if you add three months to the process, it’s going to take an extra three months. You know, there have been some that have gone a little bit longer. There’s some that’ve gone shorter—again, it’s USCIS. So, we’re talking averages and general experience, but they’re always occasional.
Additionally, on that side, how long are you seeing typically it to take for the DS-260 to get approved?
Well, the problem with the DS-260 right now is the vast majority of U.S. consulates are shut down. So, the DS-260 normally takes, in non-COVID times, somewhere around six to eight months. You know, right now I can’t even estimate, you know… even though EB-5 was specifically exempted from the visa bans, the travel bans still apply to half the world. And even if they don’t apply, the consulates may not be open. So right now, they’re realistically not issuing a lot, and a lot of visas and the timing is going to be longer. And I can’t give you a real good estimate because it depends on what happens with COVID.
Got it, got it. One question we got is, in a project, if an investor has already filed their application and it’s not an expedited project but that investor is an essential healthcare worker, what do you think the chances are of a person, an individual like that, getting approved with that kind of a compelling reason?
Yeah. If you fit into any of the national interest exceptions for the travel bans, you can apply for it at the consulates. Usually, I mean, if they’re a central healthcare worker, but they’re getting a green card through EB-5, I mean, do they have another visa status? Like, if they’re not coming to work in a healthcare position, then you might not be successful at expediting, but if you are, then yeah, it should, it should help. You should have a decent shot at getting a visa issued.
Great. So, one other thing is for investors filing in a project that has been granted expedite status—does the investor’s I-526 have to have anything different in it, or is it just going to automatically, kind of, you know, be treated as an expedite project investment, since the project itself has already gotten the approval?
We make the practice, and we, you know, suggest that everybody else makes the practice to, you know, renew the request to expedite every case. Like, you know, there is something at the beginning of our cover letter that says, you know, this project has been granted an expedite—please expedite this case. So, we do, with every single one, make the request. We don’t submit all the documents because they’re already submitted. And so far, that’s been successful.
Got it. Okay. And in your just general opinion, you know, if out of 100% of the projects currently in the market, what percentage would you say have an expedited approval?
I’m personally not aware of very many. It’s like 1%. I mean, it’s a very, very, very small number.
Got it. Okay. Another question we got is, if the project does have the expedite, then, you know, is it, you know, guaranteed, essentially that an investor in that project will get, you know, faster processing? Now, it’s not guaranteed, obviously, if that investor is going to get approved or not individually, but, you know, is every investor in that project going to be evaluated on a shorter time?
Nothing in life is guaranteed except death and taxes, right? But to borrow a cliché, if a project is expedited, we have no reason to think that every investor wouldn’t be expedited, but, you know, I can’t guarantee you that USCIS won’t have a problem with that particular investor, won’t suddenly change its mind on something, right? It’s unlikely, but I can’t say that it’s impossible. So, I can’t tell you that it is guaranteed, but so far, our experience has been that all of the investors are expedited.
Okay. This is another good question about, kind of, diligence. So, let’s say I’m looking at a project that is telling me they have expedited approval. What do I need to ask for them to give me so that I know for sure that that is actually true? Like, what document would they give me that would, you know, give me the comfort to know that if I invest with them, I’ll actually get, or are most likely to get expedited treatment on my petition?
So, it depends, or, you know, USCIS has done different things at different times. So, there may be an approval letter that says, “Yes, we’re expediting the I-924,” or “Yes, we’re expediting the I-526s.” But there may not be one thing or both, but ask about the approval times, ask them to provide you with, you know, a list of processing times… you know, some case examples. So, I think some of them have used their, you know… some of them have gotten permission to give out redacted, you know, received notices and approval notices or just receipt numbers that you can enter online and check the, you know, the case processing time. But yeah, I mean, there unfortunately hasn’t been a standardized document form from USCIS.
Got it. So, kind of, two things there. One is, you know, there’s gotta be some kind of letter of correspondence that confirms expedited status from USCIS. Maybe it’s talking about the project or the, you know, investor and the project, or both, but there’s gotta be some official document from USCIS that mentions expedite, number one, then, two, is… ideally, get a list of some recent investors in the project, if there are recent investors who’ve gone through the process, and then you can see tangibly how the processing time has been shortened as a result.
Yeah. I mean, they’re obviously not going to share the names and confidential information, but they may be able to get permission to share, you know, either those redacted receipt notices or other things to demonstrate that.
Right. Okay. Got it. Got it. Let’s see. Have you ever had a situation where USCIS changed their approval status on an expedite, Dan, where, you know, they gave it, and then they took it back at some later point, or you haven’t seen that?
I have not. I’ve not seen that yet.
Okay. Okay. All right. I think that’s pretty much all the questions that we got. So, I know we ran a little bit over on time, but I wanna really thank Ron and Dan for taking time out of their schedules. They’re both the experts on, kind of, the expedited EB-5 market, and I’m sure they’ve been involved in, you know, more expedites than any other firm in the market. And so, you know, if you do have questions related to getting expedite approval on either a project or as an individual investor who’s already invested in a project, please reach out, and all the contact information for both Klasko and EB5AN is listed on the slides there, eb5an.com and eb5visainvestments.com, where we have a number of current projects listed, and a video recording of this will be posted on our YouTube channel in the next couple of days. And if you do want to get a copy of the slides, please send us an email to firstname.lastname@example.org, and we’ll be happy to send a PDF file of the slides. So yeah, that’s it. Thank you again, Dan and Ron, for joining us, again, and yeah, we hope this has been helpful. And again, any questions at all, please send them over and we’ll try and address them the best we can.