EB5 Investors Magazine English Edition Volume 6, Issue 2 | Page 47

TOP CORPORATE AT TORNEYS CATHERINE D. HOLMES JMBM | PARTNER & CHAIR OF INVESTMENT CAPITAL LAW GROUP Catherine D. Holmes is chair of JMBM's investment capital law group, and the author of the Investment Law Blog. She has practiced law at JMBM for over 30 years, focusing on investment capital and business transactions. Holmes helps clients worldwide to raise, invest and manage capital from U.S. and non-U.S. investors. She has represented more than 100 real estate developers in obtaining financing through the EB-5 immigrant investor visa program for the development of hotels, multi-family and mixed-use developments through the U.S., and has represented numerous Chinese investors in the purchase of hotels and businesses in the U.S. WHAT TRENDS ARE YOU SEEING IN THE EB-5 INDUSTRY? There is and will continue to be a substantial reduction in EB-5 investors from China due to the 15-year waiting period to obtain a U.S. conditional residency visa. This has caused a significant reduction in new EB-5 projects, because EB-5 investors from other parts of the world have not made up in numbers for the reduction in investors from China. There is also an increase in uncertainties on the part of both NCEs and EB-5 investors arising from the USCIS requirement for redeployment of funds. These issues need to be addressed through legislation and/or changes in USCIS regulations and policy. HOW ARE YOU HANDLING THE ISSUE OF REDEPLOYMENT? In the absence of clarification from USCIS, NCEs are required to make judgements as to what types of redeployment will meet USCIS policy, while at the same time attempting to address the concerns of EB-5 investors that their capital is being used for new investments that they never contemplated when they made their original investment decision. The safest form of redeployment from both of these perspectives may be a redeployment in a project that is substantially similar to the original EB-5 investment, although a pooled fund may provide greater diversification and liquidity and better address the needs of the investors. MICHAEL HOMEIER LAW OFFICE OF MICHAEL G. HOMEIER, PC | PRINCIPAL Michael Homeier practices securities, corporate and transactional law (including EB- 5, crowdfunding, and blockchain), bringing over 30 years of experience. He represents EB-5 issuers, regional centers and developers on project structuring and drafting EB-5 securities and business documents, including PPMs and offering, transactional, and corporate documents. With his prior firm Homeier Law PC, Homeier is a leader in EB-5- related securities transactions, engaging with more than 400 EB-5 projects since 2009. He speaks frequently on EB-5, crowdfunding and blockchain, also as an inspirational speaker to young adult cancer survivors (as one himself) on post-treatment life success. WHAT TRENDS ARE YOU SEEING IN THE EB-5 INDUSTRY? Despite reports of its imminent demise, today’s EB-5 industry continues moving forward, slogging through lengthening investment horizons, continued processing delays and highly competitive investor marketplaces. Following closure of the China market, new and renewed markets in India, Vietnam, Korea and even South Africa are being tapped. Overt securities fraud cases diminish, as quality projects, in particular small, direct projects, find investors. Global immigrants continue preferring the USA, so if enhanced integrity, reasonably increased investment minimums and heightened RC oversight can be balanced by increased visa numbers and reduced processing times, continued EB-5 growth could continue. It’s well worth the effort. HOW ARE YOU HANDLING THE ISSUE OF REDEPLOYMENT? As a securities lawyer, disclosure is key. SEC requires informing investors about the redeployment strategy; it does not require any particular strategy. Prospective investors must be informed in the PPM, before they make the investment decision, what is the EB-5 issuer’s redeployment strategy in significant detail (what alternate investment(s), timeline, and risks, will management select, may investors decide to opt in or out, are alternates in line with the issuer’s initial purpose, etc.). All are disclosed to the maximum extent reasonably practicable. With this roadmap, the issuer must then follow it if a repayment happens. It’s delicate, but doable. EB5INVESTORS.COM 47