EB5 Investors Magazine Volume 4 Issue 1 | Page 91

Continued from page 88 Turning Point In the ever-changing landscape of the EB-5 program, one thing has stayed constant for the business plan. It is the definition of Matter of Ho.2 Although what defines the content of a business plan has not changed, the rigor of USCIS’s scrutiny of the Matter of Ho criteria has evolved a great deal. This is evident through the volume of memo, and RFEs released in the last four years. The thought process of USCIS adjudicators displays identifiable patterns, which have become more clear with the experience of writing hundreds of business plans and 50 RFEs. Before 2013, project planners often regarded the business plan as more of an afterthought. All of the business strategies were determined through discussion between the management team, attorneys, and economists. Once these ideas were fleshed out sufficiently, a business plan writer was engaged to merely organize the details and put ideas to paper. Financial projections, which are the crux of the business plan, were often just based on the opinion of the management team. If there was data involved, it may have been outdated or loosely tied to the project. This was an accepted practice in the EB-5 program to support revenue and expense assumptions until 2012. Many viewed the listed requirements of Matter of Ho as more of a suggestion than strict guidelines. As unbelievable as that may seem today, there were many I-526 projects that received approval through this process. Today, the only remnant of this process is in the development of a “Hypothetical Project” for a new regional center. The May Memo officially confirmed the agency’s intention to examine in detail the factual foundations of assumptions and projections presented in the business plan. By articulating as a matter of policy that business plans would not be “comprehensive and credible” without such detailed support, USCIS required more documentary evidence of legitimacy from regional centers and their affiliates in the process of developing and marketing their EB-5 projects. It became unquestionably clear that USCIS would not find credibility based on the mere opinions of regional center management, and the industry determined that third-party data was the best way to objectively establish a basis for the business plan. The data used must also be relevant to the project in terms of industry codes, geography, and timing (ie. must provide enough historical data and/or be recent enough for current projections). The type of third-party data can vary from industry to industry. Therefore, the right data must be researched and selected to represent the project specifically, as the subsequent analysis will need to be leveraged and integrated into the business plan. Additionally, certain industries such as assisted living, hotel, and real estate may require more third-party data for verifying potential revenue and construction costs. In the case a business plan is insufficient to establish the basis that is required, a third-party feasibility study report or a custom data report may be needed. Continued to page 90 Our Experience Sets Us Apart TOP 25 ATTORNEYS, LEADERS IN THE FIELD ■ PUBLISHED AND RENOWNED AUTHORS ■ ADJUNCT PROFESSOR AT NY CITY UNIVERSITY ■ HIGHLY EXPERIENCED IN EB-5 AND U.S. IMMIGRATION LAW www.mshahlaw.com WWW.EB5INVESTORS.COM 89