EB5 Investors Magazine English Edition Volume 6, Issue 2 | Page 50

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. 50 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.