EB-5 Business Plans and Matter of Ho

USCIS business plans are based on a 1998 precedent decision “Matter of Ho”. In this article we’ll talk about the standards set in this case.

To apply for an EB-5 investor visa, you’ll need to fill several requirements. First, you must invest at least $500,000 in a new U.S.-based financial enterprise. Using that investment, you’ll have to create at least ten full-time jobs.

To demonstrate that your investment can fulfill that employment requirement, you’ll need a comprehensive business plan. However, USCIS will only accept business plans that meet their standards. These are based on a 1998 precedent decision Matter of Ho, which you can read online. In this regard, a business plan that conforms to USCIS’s standards is said to be “Matter of Ho compliant.”

In this article, we’ll talk about the standards set in Matter of Ho, and clarified in the USCIS EB-5 policy manual.  Keep in mind however that USCIS has broad freedom in interpreting Matter of Ho standards in light of individual circumstances. Therefore, the advice of an experienced immigration attorney will always be your best resource when it comes to applying for an EB-5 visa.

Description of the Business

According to USCIS, an EB-5 business plan should contain “a description of the business, its products or services (or both), and its objectives.” This description should emphasize that your capital is at risk, and that you have a plan for meeting the job creation requirement. Such a description won’t necessarily insure Matter of Ho compliance, but it’s a great point to start from.

Capital at Risk

In order to obtain an EB-5 visa, your capital must be “at risk.” However, this doesn’t mean that you need to make a dangerous investment. Instead, it means that you must stand to lose your capital investment if the business fails. You cannot, for example, enter into an agreement which refunds or returns your capital at will.

Of course, it’s not enough to simply say that your capital is at risk. You’ll need to provide material evidence. This can come in the form of mortgage agreements, promissory notes, or nonredeemable shares in the new enterprise. Alternatively, you can provide evidence that you have committed funds which you will invest upon acceptance of your I-526 petition.

You may also enter into an agreement with other EB-5 investors, or with an EB-5 Regional Center. If you do, you’ll need to demonstrate that your pooled investments are all at risk. You’ll also need to show that each investor is depending on the success of the enterprise as a whole for their returns. In other words, it shouldn’t look like each investor is making separable investments to minimize risk.

Bonds and Risk

Bonds present a special issue for proving risk. In recent years, some EB-5 investors and Regional Centers have attempted to obtain visas by pooling together money in an enterprise and buying municipal bonds in that enterprise’s name. The municipality then uses the money to fund a project which creates jobs, both directly and indirectly.

Nothing in the USCIS’s policy handbook explicitly prohibits this. However, it has created some controversy because municipal bonds are usually seen as low-risk investments. The result is that USCIS has rejected many bond-based projects while accepting others.

If you wish to submit a bond-based project for the USCIS’s approval, there are a few steps you can take to increase your chances of approval:

  • Your enterprise should purchase revenue bonds, not general obligation bonds. General obligation bonds are almost always low-risk. However, some revenue bonds entail significant risks, allowing your business to remain Matter of Ho compliant.
  • Make sure the bond’s interest reserve yield is not allocated to you or another EB-5 investor. This will increase the amount of your capital that is at risk.
  • You should work with the municipality to understand the number of jobs created by your bond investment. Remember to personally investigate these claims to make sure that all of the jobs meet USCIS’s employment standards.
  • If possible, work with your municipality to find a bond structure that emphasizes your risk. For example, a bond without an interest reserve and with offering costs paid through an administrative fee would be perfect for EB-5 investment purposes.

The Job Creation Requirement

Your description will also need to show that you plan to fill the EB-5 job creation requirement. As a reminder, that means creating ten full-time permanent positions for employees. In this context, “full time” means 35+ hours of labor per week. Additionally, the people filling those positions need to be able to work in the U.S. indefinitely.

Unless you’re investing with an EB-5 Regional Center, you’ll need to create these jobs directly. You’ll also need to demonstrate that the jobs are tied to, and necessary for, the operation of your enterprise. In most cases, this means that your business plan has to have a detailed hiring schedule.

If you fail to create these jobs by the end of your probationary visa period, your application for permanent residency will not be accepted.

On the other hand, applicants investing with Regional Centers can benefit from indirect job creation. This means that your business plan doesn’t necessarily need to discuss staffing requirements. Instead, the Regional Center will work with you to create an employment report derived from their economic models.

This report will detail the indirect economic impact of your EB-5 project, thereby fulfilling the job creation requirement.

Market Analysis

USCIS also suggests that you include a detailed market analysis with your business plan. This is a complete report on the state of the market, including information on competing businesses or projects. Ideally, your business plan should investigate the policies and structures of those competitors.

For each, you’ll want to describe in-depth whether you plan on adopting similar strategies, and why.

Within this market analysis, you’ll want to include information pointing to the viability of your enterprise. USCIS will want to know that you’ve taken every expense into account. If your business will need to purchase materials, licenses, or regular fees, you’ll want to include that information. Even more importantly, you’ll need to show that you have a plan for affording those expenses.

This will be hard to prepare without help. Make sure that you employ a credible financial advisor for this purpose. While hiring outside help can get expensive, remember that every third party you bring in improves your business plan’s credibility.

Demonstrating Credibility

On the note of credibility, one of the main goals of the EB-5 program is to create successful businesses in the United States. This means that they will reject business plans that seem likely to fail. To avoid this, make sure your business plan demonstrates the viability of your enterprise through the following methods.

Legal Documents

Many enterprises will need to secure permissions, permits, and other legal necessities in order to operate. It’s important that you do this before submitting your I-526 petition. Then, you can include those documents along with your business plan. By doing so, you’ll demonstrate both your commitment to your investment and the credibility of your enterprise.

Experience

If you have business experience, make sure to emphasize it in your plan. Include details on where you worked, how long you were there, and the manner in which the enterprise was successful. Focus on the positive, but don’t be afraid to acknowledge mistakes as learning experiences. USCIS wants to see that you’ve managed an enterprise before, but they don’t require a flawless track record.

Of course, many EB-5 applicants have no prior financial or business experience. In that case, it’s important to emphasize the experience of those around you. This is easier if you are investing with a Regional Center, where your management role is downplayed.

However, even a direct investor with little experience can get through the application process if they have an all-star team backing them up.

Strategy

Finally, don’t be afraid to talk about your advertising, marketing, and financial strategies in your business plan. USCIS wants to know that your business has a realistic chance of being competitive. Thus, they appreciate any evidence of competitiveness that you can give.

Likewise, make sure you include projections of your company’s long-term success in your business plan. Technically, you aren’t required to run your business after you receive your unconditional visa. However, USCIS often prefers longer-term projects with ongoing employment prospects.

Common Mistakes

Unfortunately, it’s very easy to put together a business plan that looks good but fails to meet USCIS’s standards. In fact, that’s the whole reason Matter of Ho exists. Before you submit your I-526 petition, remember to check your business plan for the following issues.

All Style, No Substance

The most common problem with EB-5 business plans is inefficient use of space. A complete business plan including documentation can run up to 100 pages or more, so it’s important to make every word count. No amount of flowery writing will compensate for an application that’s lacking in the essentials. Instead, focus on the credibility of your business, its fulfillment of EB-5 standards, and your plans for the future.

Lack of Risk

As we talked about before, investors must be at risk when financing an EB-5 project. If you fail to demonstrate risk, your EB-5 application will be rejected.

For this reason it’s a good idea for your business plan to call attention to places where your capital is at risk. The more clear and explicit you are, the more likely USCIS is to recognize the risk you’ve taken on.

Invalid Funds

Technically, proving the validity of your funds is part of your I-526 petition, not your business plan. However, USCIS will nevertheless scrutinize all the funds you mention. Make sure you review your business plan for consistency with your I-526 petition before you submit either one.

As a reminder, valid EB-5 sources can include:

  • Salaries or wages paid.
  • Money from the sale of real estate or stocks.
  • Inheritances or gifts.
  • Loans, provided that you are solely liable for them. In addition, the loans must be secured by your personal property. You cannot secure the loan using your EB-5 enterprise.

You should include documentation proving the source of your funds with your I-526 petition. Additionally, you should include copies of that documentation with your business plan if there is any risk of ambiguity.

While USCIS is unlikely to reject your business plan on the basis of insufficient documentation of funds, they may instead initiate an inquiry. This can delay the acceptance of your application, making the time-consuming EB-5 process that much longer.

Choosing the Wrong Regional Center

When you invest with an EB-5 Regional Center, they typically provide you with documentation and an employment report to be included with your business plan. Unfortunately, there are concerns of fraud when it comes to EB-5 Regional Centers.

There are two ways to prevent this problem.

First, always do in-depth research on a Regional Center before you invest with them. Make sure you discuss your options with an independent investment expert or financial adviser.

Second, you should also do your due diligence on the documents the Regional Center provides you with. Of course, it’s very difficult to check the validity of employment reports derived from complex economic models. However, you can still search the Regional Center’s work for obvious mistakes with the help of your immigration attorney.

Conclusion

Ultimately, Matter of Ho only provides guidelines for a successful business plan. Even if you follow those guidelines exactly, USCIS will still subject your business plan to careful individual scrutiny. For that reason, it’s important to work closely with an experienced immigration attorney when preparing your application.

Even the best online guide can only provide suggestions, while a good immigration attorney can provide irreplaceable personal guidance.

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