Kutak Rock’s EB-5 team represents regional centers, new commercial enterprises, job creating entities and other stakeholders that raise and deploy EB-5 capital. We work with clients to navigate the complex legal environment and comply with nuanced securities laws and regulations and tax implications.
Our extensive structured finance experience positions us to devise creative structures combining EB-5 financing with an array of other financing tools such as tax credits, bonds, traditional lending and private equity. We document and negotiate the key facets of EB-5 transactions, including the preparation of private offering documents, operating agreements, partnership agreements, foreign placement consulting agreements, teaming agreements, loan documents and escrow agreements.
We act as trusted advisors on EB-5 financing by utilizing the expertise of our real estate, corporate governance, finance, labor and employment, securities, tax, insurance and immigration teams to steer our clients through the labyrinth of EB-5 legal considerations.
Regional Center Compliance Audits
The USCIS recently announced a regional center compliance audit program, and our team is equipped to provide guidance every step of the way. We are experienced in representing clients in government audits and we’ve worked across the table from the USCIS.
We advise on all aspects of EB-5 capital deployment, including term sheet analysis, loan and equity documentation, and intercreditor arrangements and are focused on the issue of capital redeployment and its interplay with deployment documentation. Many new commercial enterprises with investors from Mainland China are challenged with sustaining “at risk” investment during ever-increasing processing times. As waves of EB-5 projects are completed and job-creating entities prepare to repay EB-5 capital to new commercial enterprises, many new commercial enterprises are concerned that repayment will jeopardize their EB-5 investors’ ability to obtain an EB-5 visa.
The USCIS has provided limited guidance on the proper protocol for EB-5 capital mired in this unique limbo. Effective June 14, 2017, the USCIS Policy Manual was updated to clarify its policy on sustaining investment. It suggests that redeployment of EB-5 capital into particular types of new issue municipal bonds may be allowed under certain circumstances. Kutak Rock has served as bond counsel on over 10,500 municipal bond issues aggregating over $320 billion in principal amount in all 50 states, the District of Columbia, the U.S. Virgin Islands, and Puerto Rico. Our public finance attorneys work with our EB-5 team to offer unique insights into redeployment into such new issue municipal bonds. As regulations and policy evolve, our team is at-the-ready and equipped to provide counsel on necessary securities law disclosures, loan or equity agreement build-out, and redeployment of EB-5 capital into municipal bonds.
Representative EB-5 Experience
Served as counsel to issuers/new commercial enterprises and their managers in:
$87 million offering for development of government medical facility
$82.5 million offering and loan for development of branded hotel
$53 million offering and loan for development of government office building
$49 million offering and loan for development of a gaming facility
$49 million offering and loan for development of a multi-use commercial development
$49 million offering and equity contribution for development of senior living facility