EB5 Investors Magazine | Page 82

Continued from page 78 Supply and Demand Effects on a Saturated Marketplace Unless the government increases the overall EB-5 quota, the market for EB-5 projects is likely close to being saturated at its current level. This means that stakeholders in the EB-5 value chain will face increasing competitive pressure while facing a more limited investor pool. As a result of market saturation, we might well see the beginning of more competitive EB-5 offerings and more competitive behavior among Chinese agents, including possible fee reductions and more aggressive selling behavior among smaller agents who are still establishing themselves in the marketplace, or, on the other hand, increased fees among agents who have consistent track records in being able to bring investors to deals. EB-5 offerings will also have to be increasingly supported with experienced business/operational teams who have proven track records, and we may also start to see better deal terms offered to investors overall. Over the medium term, we anticipate that the quality of EB-5 offerings will increase as supply of available investments meets or exceeds market demand and investors start to cherry-pick the best deals. More Creativity in Escrow Over the last two years we have seen some significant changes to how escrow is being employed in the EB-5 process. Some of these changes include releasing funds from escrow upon the first I-526 approval, or employing a hold-back methodology, whereby a portion of investor funds are released upon filing of the investor’s I-526 petition and a portion is held back to allow the company to pay back any investors whose applications are not approved, instead of escrowing the funds until I-526 approval. In some cases, albeit rarely, we have seen deals with no escrow at all being sold successfully in the marketplace. The main driver behind implementing more creative uses of escrow has been increasingly long USCIS processing times combined with the need for projects to get capital into their projects without having to wait over a year for I-526 approvals. With retrogression taking effect, there may be a need for more creative approaches to escrow as, on one hand, investors may be seeking delayed release of their funds to the project, while, on the other hand, EB-5 project owners continue to face the pressures of a more immediate need for capital. A Longer Window for Job Creation Chinese investors who are only now submitting their I-526 petitions will not face delays in processing, but they will face a longer wait time before being issued their conditional green cards. As a result, the clock will not start ticking on the job creation window until the investor becomes a conditional resident. To illustrate this point, an investor who is not affected by retrogression and who submits their I-526 today might get approved in 14 months, with current processing times, and would therefore only need to demonstrate that jobs have been created (or a ‘reasonable expectation’ of job creation) when they get to the I-829 stage (this time period is currently counted as 2.5 years from the I-526 approval date). By contrast, if an investor who is affected by retrogression has to wait an additional year - for example, before they get their conditional green cards - this will give them (and therefore the project) an additional year to prove job creation, effectively eliminating the 2.5 year rule as a result. There are downsides to this longer job creation window. First is the fact that a business may need to operate successfully for a longer period of time in order to show that the necessary jobs are still in existence at the time of the I-829 filing. Second is that the longer window means a longer time period before EB-5 investors can ultimately exit from a given deal, which may negatively impact a project’s refinancing plans. While a free and uncapped market would be the best situation for the EB-5 industry, retrogression is reality. Given this reality, stakeholders in the EB-5 industry should be aware of how some of the by-products of retrogression can impact them and the industry in both positive and negative ways. ★ Phil Cohen is the president of Strategic Element, a company that focuses on developing EB-5 business plans, economic impact reports, feasibility studies, and custom ‘direct’ EB-5 projects.Cohen has been active in the EB-5 industry since 2010 and has participated in the development of more than 90 EB-5 regional center and direct projects. Cohen is also the lead author of The EB-5 Definitive Guide. Phil Cohen 80 EB5 INVESTORS MAGAZINE