EB5 Investors Magazine Volume 7, Issue 1 - Page 23

EB5INVESTORS.COM 21 The EB-5 consulting firm would take the lead in preparing the response to the NOID by creating a cover letter that paralleled the NOID point for point. Points (A), (B) and (D) from the NOID would be handled by the investor’s immigration attorney, while points (C) and (E) would be handled by the consulting firm. BEST PRACTICE #2: RESPOND TO EACH ISSUE INDICATED BY USCIS P o i n t ( A ) w a s d e a l t w i t h b y t h e i n v e s t o r ’s immigration attorney and required the completion of Form I-526, which was missing answers for page 5, questions 10 through 20, and page 6, question 11. Point (B) was also handled by the immigration attorney and involved clarif ying through documentary evidence that the investor did indeed live at the address listed on her I-526 petition. Point (C) was addressed by the EB-5 consulting firm. The primary issue raised in this section was insufficient evidence that the investor’s capital actually went to the job-creating entity (JCE). NOID CASE STUDY As an example of these best practices, consider a NOID issued by USCIS to an individual EB-5 investor who invested in a major hotel renovation project in New York state. The investor was issued a NOID in response to her Form I-526 filing. In that NOID, USCIS i ndicated t hat t he i nvestor had fa i led to establish her eligibility under the EB-5 program for the following reasons: (A) Form I-526 was incomplete. (B) The mailing address on Form I-526 was shared by other investors in the same project. (C) The invested capital was not sufficiently linked to the entity most closely responsible for job creation. (D) The evidence did not establish that the invested capital was obtained and exchanged lawfully. (E) The business plan was not Matter of Ho compliant. BEST PRACTICE #1: COORDINATE A RESPONSE TEAM In this case, the investor worked with her immigration attorney and hired an experienced EB-5 consulting firm to help handle the NOID. The response by the consulting firm first included an update to the sources and uses chart, which served in part to identify the JCE and evidence the flow of funds from investors to the actual renovation project. This updated chart was referenced in the cover letter and included as an exhibit. N e x t, t h e r e s p o n s e pr o v i d e d a n n o t a t e d b a n k records that showed the transfer of funds from the EB-5 investors into the bank account of the new commercial enterprise (NCE) and the subsequent transfer of funds from the NCE’s account to the JCE’s account. The response also indicated the date on which the investor’s capital contribution of $500,000 was deposited into the NCE’s bank account and the related transaction number. Each of these details from the cover letter pointed to the actual annotated bank records included as an exhibit to the response. A secondary issue raised by USCIS in point (C) was the lack of a construction loan agreement, which the business plan indicated would be included in the filing. Thus, a construction loan letter of intent and term sheet was included in the response package a s a n e x h ibit a nd w a s re fere nce d i n t he cover letter. Point (D), which required further evidence of t he law ful source a nd pat h of t he i nvestor’s funds, was handled by the investor’s immigration attorney. Addressing this issue required clarifying s o m e i n c o n s i s t e n c i e s i n s t a t e m e nt s b e t w e e n Form I-526 and a letter accompanying that form. USCIS also required further evidence that a gift from the investor’s father used in the investment was lawfully acquired by the father. The attorney i ncluded as a n e x h ibit ev idence of t he fat her’s employment and tax history.