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Direct EB- 5 Visa vs Regional Center EB-5

Direct EB-5 Visa

While most Indian Nationals pursuing EB-5 based Green Cards obtain them through the “Regional Center” route a number of our Indian clients use “Direct EB-5”.

Approximately 90% of all EB5 cases are filed through a Regional Center.

What is Direct EB5? 


Direct EB5 involves investing in a project that qualifies an Indian investor for an EB-5 based green card which is not offered through a Regional Center.

Direct EB5 can be used to obtain a US green card by:

1. Establishing or expanding your own business in the United States.
2. Establishing an entrepreneurial venture in the USA.
3. Establishing or expanding a family-owned businesses in the United States.
4 Investing in a business owned by another person or entity. 

 
The “Direct” EB-5 program is therefore a route for HNI Indian investors to establish and operate their own businesses in the US.

Is there a Difference Between the Investment Required for a Direct EB5 and Regional Center Eb5?


There is no difference between the investment required for a Direct EB5 and a Regional Center Eb5.

In both cases the required investment is either USD 800,000 or USD 1,050,000 depending on where the project is located.

Eb5 Projects in a high unemployment area or rural area require an investment of USD 800,000.
 

Why Is Direct Eb5 Popular in India? 

While most Indian Eb5 applications are filed using the Regional Center Route a number are filed using the “Direct” route.  Direct EB5 enables an investor who wants to invest in their own business in the United States to do so and obtain an immigration benefit in the process.

Can Multiple Indian Investors Use Direct EB5 in the Same Development Project?  

 
The EB5 Reform and Integrity Act (2022) restricted the number of investors in a Direct Eb5 project who can obtain an EB5 based green card.  Where there are multiple investors in the same Eb5 project there are now two solutions:

1. Use of a “Rental” Regional Center 

Some Regional Centers (“RC”) will effectively “rent” their RC license to a project.  This means the project can accommodate multiple investors and benefit from indirect job creation.

2. Breaking a Development Project into Multiple EB5 Projects 

The RIA does not preclude breaking a development down into multiple EB5 projects that make sense.  For example, a restaurant or a large bar in a hotel could easily be a separate project from the rest of the hotel.  

The bar and the restaurant can each be incorporated as separate entities, each accommodating one Eb5 investor.  In this way three investors can obtain immigration benefits from a hotel development – (1) an investor in the main hotel; (2) an investor in the hotel restaurant; and (3) an investor in the hotel bar.

Breaking a development project into separately incorporated subsidiaries often makes sense from a liability and taxation protection perspective.  Liabilities arising in a hotel restaurant, for example, do not necessarily impact operations in the rest of the hotel.

Each sub-divided project will individually need a minimum investment of USD 800,000 (or USD 1,050,000) and to create ten direct jobs.


What are EB5 Job Creation Criteria?  

A Direct and Regional Center project investor must both create ten new jobs.

The way in which a Direct and Regional Center project can demonstrate job creation differ vastly.  While a Direct project must evidence and maintain ten actual jobs a Regional Center project can create “induced” or “implied” jobs created by virtue of the project’s economic impact.

One reason why Regional Center projects are so much more popular than Direct projects is because job creation is much easier to demonstrate in a Direct Project.

What Happens if I don’t Need Ten Workers in My Business?

For a Direct EB5 United States Citizenship and Immigration Service (“USCIS”) will check to make sure that the ten jobs created in a direct project are really needed.  Hiring workers merely to complete the ten new worker job count is not allowed.  Investors who cannot demonstrate that they have created ten jobs that are really needed are likely to have their EB5 cases denied.

As Regional Centers use formulas that imply job creation based on the economic impact of capital expenditures the same concern does not apply.


Direct EB5 vs. Regional Center EB5 – The Costs

Eb5 Regional Center Project

Eb5 Direct Project

Regional Center Fee

USD 50,000 – USD 100,000

0

Eb5 Source of Funds Fee

USD 5,000 – USD 10,000

USD 5,000 – USD 10,000

EB5 Attorney Fee

USD 15,000 – USD 30,000

USD 15,000 – USD 30,000

Corporate Lawyer Fees

0

USD 10,000 plus (depends on project and structure)

Other costs

Can be significant project arrangement costs depending on the investor’s role in the project and the type of project.

Business Plan fee

0

USD 5,000 – USD 10,000



Investing Via a Regional Center

Investing through a Regional Center can be the easiest and fastest way to a “green card”. That said, choosing the right Regional Center is key. Choosing the wrong Regional Center can lead to disaster, the loss of your money and a failure to obtain a “green card”.

There are now well over 750 Regional Center registrations in the United States. While we are not a financial advisor we can provide clients with accurate historical information on the success of different Regional Centers. We can also provide legal due diligence on the background and qualifications of Regional Centers.

A key question is to understand your law firm's experience with complex structured finance. Without this experience your lawyer will not be able to fully understand the nature of the risks involved.

An EB5 lawyer needs to be independent of a particular Regional Center because that EB5 lawyer needs to be able to negotiate against a Regional Center on your behalf or to take that Regional Center to court to obtain a refund of your money. A lawyer cannot negotiate against a Regional Center or take them to court for your money if that lawyer also represents that Regional Center or is being paid by it.

It is not uncommon for Davies & Associates to find errors in Regional Center documents or in the financial structure of the underlying deal. As an independent law firm Davies & Associates negotiate against the Regional Centers on behalf of Indian Investors to correct these defects. If we are not satisfied with the deal structure and documentation we will advise our client to withdraw from the investment. It is worth noting that Davies & Associates has obtained a 100% refund from a Regional Center where our Indian client decided to withdraw from the transaction.