EB5 Investors Magazine Volume 7, Issue 2 | Page 122

While these have become ubiquitous they are not all created equal. The investor, with the help of their attorney and investment advisor, should look for three things when evaluating these guarantees: who, how, and when. First, check to see who is signing the denial guarantee. Then evaluate the signatory’s assets or financial capabilities to make a repayment to the EB-5 investors. If the party, or person, is not credit worthy, the guarantee is not worth more than the paper it is printed on. Next, consider the language in the guarantee describing how and when the investor’s capital will be returned. Many projects contemplate finding a replacement investor or other “commercially reasonable efforts” to return the investment during a denial. The strongest I-526 denial guarantees set a time limit on these activities and outline a backup plan if that does not return the investor’s full investment. It is important to first take into consideration the physical location of the project. The U.S. is a large country and market conditions vary from city to city. For example, a luxury high rise condo building may not be feasible in a city with a population of 40,000 and an average income of $75,000. However, that same city may have substantially unmet demand for senior housing resulting in favorable market conditions for that particular asset class. The risks of those two projects, in the same city, will differ greatly. To scope out the market conditions, investors and their advisors should thoroughly review the project’s market study. Before diving into the data, check to make sure the market study is completed by a reputable third party, conducted on behalf of the project (public data alone does not provide sufficient details), and that it is current. Once in the report, look for indicators that the market is stable, shows strong signs of grow th, and that the project will benefit from various demand drivers that will continue to push customers to the project. For example, a hotel would benefit from being located near a university or international airpor t, since both have a broad base of users frequently looking for hotels. The market study, in addition to the business plan, should also discuss competition. Look for signs that the project has a reasonable plan regarding how it will compete. "With source and path of funds being the most common reason for an I-526 denial, it is imperative investors work with immigration counsel to properly document their investment capital prior to investing." Another tool to manage financial risk, in this early stage, is an escrow account. Previously, escrow accounts were structured to release investor capital only af ter I -526 approval. As USCIS adjudication times become lengthier, the practice shifted to utilizing partial holdback accounts. These are useful tools to reduce the financial risk of denial; however, it often creates challenges for the project including delays. On occasion an investor may still come across projects that use a holdback account. In these cases, remember this only provides certainty that a portion of the principal will be readily available in the event of a denial. Investors should still inquire as to what, if any, other protective measures are in place to ensure financial risks at this stage are properly managed. STAGE 2: CONSULATE INTERVIEW AND CONDITIONAL RESIDENCY ADMISSIBILITY RISK As with each stage, investors are required to show they are admissible during the consulate interview or adjustment of status process. Investors need to be mindful of their prior immigration history, as a lapse in status or having a prior visa revoked may put EB-5 immigration plans at risk. Further, any arrests or convictions anywhere in the world may jeopardize the ability for an investor to immigrate to the U.S. Investors must be open and honest with their attorney, prior to investing, to identify any potential issues with their immigration or personal history in order to improve their chances of securing residency. MARKET RISK Investing in a good project is the best way to manage market risk. This involves evaluating the market conditions in a particular geographic area, demand, competition, and financials. 122 EB5 INVESTORS M AGAZINE Market studies should also include operational finance information. Cross-reference the financial assumptions with those used in the project’s business plan. For example, if a market study determines a hotel in that location will have an expected occupancy rate of x and average daily rate of y, make sure those are the same figures used by the project. If not, run a stress test on the financials to see how it performs at these determined market rates. CREDIT RISK The investor should assess a developer to see if they are creditworthy. Look for developers and operators with a trusted and extended track record. This helps show they can manage their business both when times are good and also during downturns. Ask about their previous work and give preference to firms who have a portfolio in the same asset class as the EB-5 project. A good hotel developer new to senior housing is more risky than a developer whose por tfolio may be smaller but has exclusively completed senior housing facilities. Additionally, verify if the past experience is ground up construction, value add, or management of a project. Do not assume someone who has been successful acquiring, managing, and growing a real estate portfolio is equally capable of a ground up construction project. Investing with an experienced developer should provide confidence the project team can properly see the construction to completion, secure all