July 26, 2016

EB-5 Capital

NMS Capital Advisors is the leading (non-captive) investment banking broker dealer working within the EB-5 industry advising Issuers (Businesses, Developers, Regional Centers) seeking to raise capital through the use of the EB-5 Program (see below) with a myriad of services from initial transaction structuring, equity and debt financing (traditional), broker dealer (FINRA/SEC) compliance oversight, to domestic and global EB-5 Capital Raising.

Other services include transaction/project due diligence, valuations and fairness opinions issued by a FINRA and SEC registered investment bank. Private Fund general partner/manager and/or investment advisory services enabling issuers to comply with the Investment Advisors Act of 1940 through our affiliated SEC registered investment advisory firm, NMS Capital Asset Management, Inc.

The NMS Capital EB-5 Practice Group team is comprised of multi-lingual team of seasoned licensed investment bankers, financials advisors and attorneys (who are also FINRA licensed) who work with the firm’s international network of investment banks, wealth management firms, legal and accounting advisory firms and migration agents throughout Asia, the Middle East and South America.

Together with the firm’s affiliated companies, NMS Capital Advisors brings to their clients a global on the ground presence in Brazil, China, India, UAE and the United Kingdom.

For more information, please contact info@nmscapital.com.

 
EB-5 Program Overview

USCIS administers the Immigrant Investor Program, also known as “EB-5,” created by Congress in 1990 to stimulate the U.S. economy through job creation and capital investment by foreign investors. Under a pilot immigration program first enacted in 1992 and regularly reauthorized since, certain EB-5 visas also are set aside for investors in Regional Centers designated by USCIS based on proposals for promoting economic growth.

All EB-5 investors must invest in a new commercial enterprise, which is a commercial enterprise:

  • Established after Nov. 29, 1990, or
  • Established on or before Nov. 29, 1990, that is:
    1. Purchased and the existing business is restructured or reorganized in such a way that a new commercial enterprise results, or
    2. Expanded through the investment so that a 40-percent increase in the net worth or number of employees occurs

New Commercial Enterprise (NCE) means any for-profit activity formed for the ongoing conduct of lawful business including, but not limited to:
A sole proprietorship
Partnership (whether limited or general)
Holding company
Joint venture
Corporation
Business trust or other entity, which may be publicly or privately owned

This definition includes a commercial enterprise consisting of a holding company and its wholly owned subsidiaries, provided that each such subsidiary is engaged in a for-profit activity formed for the ongoing conduct of a lawful business.

Job Creation Requirements

  • Create or preserve at least 10 full-time jobs for qualifying U.S. workers within two years (or under certain circumstances, within a reasonable time after the two-year period) of the immigrant investor’s admission to the United States as a Conditional Permanent Resident.
  • Create or preserve either direct or indirect jobs:
    1. Direct jobs are actual identifiable jobs for qualified employees located within the commercial enterprise into which the EB-5 investor has directly invested his or her capital.
    2. Indirect jobs are those jobs shown to have been created collaterally or as a result of capital invested in a commercial enterprise affiliated with a regional center by an EB-5 investor. A foreign investor may only use the indirect job calculation if affiliated with a regional center.

Note: Investors may only be credited with preserving jobs in a troubled business.

A troubled business is an enterprise that has been in existence for at least two years and has incurred a net loss during the 12- or 24-month period prior to the priority date on the immigrant investor’s Form I-526. The loss for this period must be at least 20 percent of the troubled business’ net worth prior to the loss. For purposes of determining whether the troubled business has been in existence for two years, successors in interest to the troubled business will be deemed to have been in existence for the same period of time as the business they succeeded.

A qualified employee is a U.S. citizen, permanent resident or other immigrant authorized to work in the United States. The individual may be a conditional resident, an asylee, a refugee, or a person residing in the United States under suspension of deportation. This definition does not include the immigrant investor; his or her spouse, sons, or daughters; or any foreign national in any nonimmigrant status (such as an H-1B visa holder) or who is not authorized to work in the United States.

Full-time employment means employment of a qualifying employee by the new commercial enterprise in a position that requires a minimum of 35 working hours per week. In the case of the Immigrant Investor Pilot Program, “full-time employment” also means employment of a qualifying employee in a position that has been created indirectly from investments associated with the Pilot Program.

A job-sharing arrangement whereby two or more qualifying employees share a full-time position will count as full-time employment provided the hourly requirement per week is met. This definition does not include combinations of part-time positions or full-time equivalents even if, when combined, the positions meet the hourly requirement per week. The position must be permanent, full-time and constant. The two qualified employees sharing the job must be permanent and share the associated benefits normally related to any permanent, full-time position, including payment of both workman’s compensation and unemployment premiums for the position by the employer.