TOP CORPORATE AT TORNEYS
SCOT PATRICK O’BRIEN
AKERMAN LLP | MANAGING PARTNER
Scot Patrick O’Brien serves
as th e Washing to n , D.C.,
office managing partner for
Akerman LLP, a national law
firm with over 700 attorneys.
O’Brien helps his clients in the
corporate life cycle to raise capital, structure corporate
ventures, resolve conflicts, acquire/develop assets and real
estate, manage operations and ultimately sell, refinance
or reposition the business enterprise or real estate
development. For those involved in the EB-5 Immigrant
Investor Program, O’Brien also represents developers,
investment companies and regional centers in the creation
of, and/or investments in, regional centers and new
commercial enterprises throughout the United States.
WHAT TRENDS ARE YOU SEEING
IN THE EB-5 INDUSTRY?
The SEC is increasing its understanding of the EB-5
process and recently has begun to question the applicable
federal exemptions for securities offerings, which is
important for issuers to be aware of. As more capital is
being raised in other jurisdictions beyond China, the need
for the issuer to understand how foreign advisors, agents
and finders are regulated in such jurisdictions becomes
important, as does the need for robust foreign advisor/
agent agreements.
HOW ARE YOU HANDLING
THE ISSUE OF REDEPLOYMENT?
We have taken a conservative approach to redeployment.
While we have built in a fair amount of flexibility for issuers,
we ultimately believe and generally advise that unless the
new redeployment project has been appropriately disclosed
in the initial offering documents, that the issuers obtain the
consent of EB-5 investors (as determined in the governing
operating or partnership agreement) before the investors’
funds are reinvested in an unrelated project. We renew our
request for USCIS to issue further guidance on what
redeployment options would be sufficient to maintain the
at-risk status during the period of conditional residency.
ERIC S. ORENSTEIN
ROSENBERG & ESTIS, P.C. | MEMBER
Eric S. Orenstein is a member
at Rose nbe rg & E s tis , P.C.
Orenstein has developed a
thriving lending practice and
is at the forefront of the EB-5
market. Additionally, he currently represents lenders, owners
and developers nationally, providing his legal expertise in
all aspects of real estate, such as financing, development,
and purchase and sale transactions. Because of his close
interaction with clients, he has been able to develop an
understanding of all the issues concerning his clients from
both a legal and business prospective. His experience
provides him with the ability to protect his clients' interests
while achieving their goals.
WHAT TRENDS ARE YOU SEEING
IN THE EB-5 INDUSTRY?
There is significant uncertainty for EB-5, with the regional center
program expiring Dec. 7. We are hopeful that with new leadership
in the House, a deal acceptable to all parties can be reached so
that the EB-5 program can be extended on a longer term basis.
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EB5 INVESTORS M AGAZINE
Such a longer extension would provide much-needed stability to
the program. While mainland China continues to be the largest
user of EB-5, Vietnam and India users have grown significantly in
recent years and this momentum may continue.
HOW ARE YOU HANDLING
THE ISSUE OF REDEPLOYMENT?
We have been advising our clients that they need to follow
several key factors when it comes to redeployment. The most
important aspect of redeployment is early, clear and consistent
communication with investors about the repayment of the initial
deployment of capital and the plans for redeployment of such
capital. Second, timing is critical. As we all know, the capital
must remain “at-risk.” We have urged our clients to get out into
the marketplace now to start identifying opportunities for
redeployment and educating real estate professionals (owners,
developers and mortgage brokers) of the impending influx of
redeployment capital.