EB-5 Program | Direct vs Regional Center
I often come across EB-5 investors who want to start their investment journey but are confused about whether to go ahead with the Direct program or the Regional Center program. This post is an attempt to provide all the important points that one should take into consideration while choosing between direct and regional center models.
(1) PURPOSE
Let’s recall the purpose of the EB-5 program. The program was started to boost the US economy by creating jobs for Americans. Thus, the capital of $800,000 by each foreign investor must create 10 new jobs.
Now, it can be done either by building your own new business or by investing in the existing business in the US. The former version is called the Direct EB-5 program and the latter one as the Regional Center EB-5 program. Either version has the responsibility to create jobs to qualify for the green card for the investor.
Let’s take it one by one:
(2) DEFINITION
In the Direct EB-5 program, it’s ultimately the responsibility of the investor to deploy the minimum capital of $800,000 in a traditional business arrangement and create 10 new jobs.
Please note, before Mar 2022 when Reforms & Integrity Act came into being, the Direct pool program was allowed. That means, pooling of capital by different individual investors in a single entity and managing that business together was allowed. Not anymore. Now, the individual investor has to deploy his own $800,000 and manage the business on a standalone basis.
In the Regional Center EB-5 program, the investor works with a USCIS-licensed asset manager, called Regional Center, that would help the investor with deployment of capital in the upcoming or running project and with job creation.
(3) VALIDITY
The Direct EB-5 is a part of the law which means that this version of the EB-5 program cannot expire. It doesn’t have any sunset date and will always be valid.
Regional Center EB-5 program, on the other hand, comes with a sunset date and has to be periodically renewed. The good news is, with the new RIA, the present version of RC program is valid till 30-SEP-2027.
(4) ACTIVE vs PASSIVE
The Direct EB-5 program is an active program. That means, the responsibility of preparing a business plan and feasibility studies, building a team of immigration attorney, securities attorney, corporate counsel, business planner, economist, and of course, then executing the business plan and running it for a good 4–5 years, all these responsibilities have to be taken by the Direct EB-5 investor.
Whereas, the RC EB-5 program is a passive program. The RC scouts for eligible EB-5 projects, which usually run into hundreds of millions of dollars, and assist the investor with becoming part of the project’s capital stack. In simpler terms, the investor becomes a debt or an equity partner with the available project.
With Direct EB-5, it will be helpful if the investor possesses some business experience and acumen to run a business. For RC, no such experience is required.
With Direct, the investor has complete control of the business. He will have managerial supervision powers and he will have to take business risks which can lead to substantial profits or losses.
With RC, the investor has little or no power over the investment capital or business. There’s no employer-employee relationship to manage. The business risk is diversified among many stakeholders which of course leads to limited upside or downside of the capital invested.
(5) JOB COUNT
There is a vast difference between the methods by which job creation is counted in the Direct EB-5 and the RC EB-5 program. And that puts RC as a preferred version of the EB-5 program.
In the Direct EB-5, the investor is personally responsible for meeting the 10 jobs per investor requirement. This comes with the responsibility of creating 10 full-time jobs for a 2-year period, with the criteria of a minimum of 35 hours a week working hours, and also adhering to minimum wage standards prescribed by the US Labor Department. It’s an employer-employee relationship one has to establish.
With the RC model, the major advantage is the way the total number of jobs is counted for the EB-5 program. There are Direct jobs, jobs that are created because of construction or operations of the project; indirect jobs, jobs created as a result of the project, such as with supply services and goods, and induced jobs, jobs created in the surrounding businesses such as home shelters for workers, restaurants etc.
This gives RCs a disproportionate advantage over the direct job counts method and results in a large job cushion and provides much more than the required 10 jobs per investor.
(6) TIME TO SPEND IN THE U.S.
With the direct EB-5, the investor has to stay in the U.S. to actively participate in the development of his business and job creation.
With the RC EB-5, the investor is passively involved and thus can stay in his native country till he is ready to move to the U.S. after receiving the provisional green card.
(7) INVESTMENT AMOUNT
For both Direct and RC EB-5, the minimum capital required for TEA is $800,000 and for non-TEA, it is $1,050,000.
(8) FINANCIAL RISK & RETURN
The risk as well as return associated with the Direct EB-5 program is high whereas with the RC program, it is low.
Reiterating, the investor should be concerned about two things when it comes to the EB-5 program:
One, successfully obtaining a green card
Two, the return of capital
For the lure of return on capital, the investor must not take lop-sided risks that can jeopardize both the green card and the capital. Unless the investor is well-capitalized and well-equipped with business skills, he must not dabble with the direct business establishment for the EB-5 program.
(9) RURAL vs URBAN
In the Direct EB-5, the probability of success of the business would highly depend on the location of the setup. To take advantage of $800,000 capital, the investor will have to establish business in the TEA, which in many cases are rural areas. And rural areas offer fewer opportunities for business success. Or else the investor should be ready to invest higher capital of $1,050,000 in a non-TEA, a typical urban setup.
In the RC EB-5, the projects associated run into hundreds and millions of dollars, even in the TEA area. With the virtue of high capitalization and job counting methods, RC models have a pretty high probability of success with even $800,000 capital requirement.
(10) USCIS RESPONSE
The response of USCIS for direct and RC models is also different. Essentially, RCs are given exemplar approval which means that once the USCIS approves an RC project, all the investors subscribed to the project automatically get the approval.
The direct model, on the other hand, is based on case-to-case scrutiny by the USCIS. It’s a time-consuming and complicated process and carries a high risk of denial by the USCIS if not done with a proper team.
(11) RESIDENCY IN THE CHOSEN STATE
With Direct EB-5, the investor has to stay in a particular location in the US for a prolonged period to make sure the established business succeeds with respect to the requirements of the EB-5 policy. Only after obtaining the unconditional permanent residency after 5–6 years can he relocate to a city of his choice.
With RC EB-5, however, the investor can settle in any location across the US irrespective of the location of the project where he has invested. This gives him the freedom to work, study, or do business in any city of his choosing.
(12) FEES STRUCTURE
Setting up a Direct EB-5 project requires an assembly of a specialized team who would be recruited and will work for the investor. Whether it is an immigration attorney, securities attorney, corporate counsel, business planner, or economist, every part will incur a cost that can shown in the representation here:
Here’s the sample of the fee structure:
Please note the current costs may be much higher than the ones shown in the table. In a nutshell, the direct EB-5 investor should be ready to spend a maximum of $150,000 as a program cost.
For the RC investors, there are only three costs they have to bother about:
- Cost of hiring an immigration attorney
- USCIS-related filing costs
- RC Administrative fees
In total, a maximum of $100,000 is what is expected by the investor to spend for RC programs.
(13) STATISTICS
Since the inception of the EB-5 program in 1990, there have been 116,741 EB-5 visas issued to foreign investors. Out of which, 92% of the visas have been routed through the RC program. After 2008, this trend has become even more prominent, suggesting only 5% of applications have gone through the Direct route.
Thus, the verdict is clear. The Regional Center model has been the most preferred mode to invest in the EB-5 Program.
(13) CONCLUSION
In conclusion, unless the investor is well capitalized, which is upwards of $ 1 million, and possesses a certain level of business acumen and risk appetite, it will always be recommended that the investor opt for a regional center model to make sure he obtains permanent residency and recovers capital more predictably.
Written by Sumit Singh (sumit@apravaasan.com)
