This article explains the diverse types of EB-5 projects, delving into the distinct advantages offered by Exemplar, Actual, and Hypothetical options. Understanding these nuances is essential for EB-5 investors seeking to make informed decisions.

What are Exemplar, Actual and Hypothetical EB-5 projects?

Exemplars, or pre-approved projects, are projects that have been evaluated and certified by USCIS to meet the necessary criteria, offering a streamlined process for future EB-5 investor filings by requiring USCIS to review only the investor’s source of funds upon I-526 petition submission. This process, outlined in Form I-924, offers USCIS-certified compliance with EB-5 regulations, leading to faster adjudication times for investor-specific documents. Actual EB-5 projects are “shovel-ready” ventures in advanced stages of development, requiring specific business plans, economic analyses, and supporting documents, with USCIS granting deference for subsequent investor filings. Hypothetical EB-5 projects, on the other hand, are not yet “shovel ready,” allowing Regional Centers to gain USCIS designation based on general predictions, with fewer required documents, suitable for less-developed projects with incomplete details.

What is involved in an EB-5 Exemplar Project Proposal?

An exemplar project proposal in EB-5 involves submitting a comprehensive I-526 petition, including all project-related documents, for an unnamed investor during the I-924 application process. This “sample” petition seeks USCIS pre-approval of the project materials, offering a distinct marketing advantage to Regional Centers. While theoretically allowing investors to file I-526 petitions with greater certainty, any subsequent changes to the documents risk losing the exemplar status.

Why do businesses need actual project proposals?

Businesses need actual project proposals to affirm the “shovel-ready” status and advanced development stages of their ventures. These proposals, integral to the I-924 application, encompass detailed business plans, economic analyses, capital investment structures, feasibility studies, permits, licenses, and relevant documentation. USCIS acknowledges subsequent investor filings based on an actual project proposal, ensuring a degree of assurance for investors and permitting minor adjustments to supporting documents before the submission of I-526 petitions.

What is a Hypothetical Project Proposal for EB-5 program?

A hypothetical project proposal is about outlining a potential project that a business plans to pursue as a Regional Center, even though the project is not yet fully developed or “shovel-ready.” This type of proposal is submitted as part of the I-924 application and includes general predictions of job creation, offering a way for Regional Centers to gain USCIS designation before having finalized project details. The focus is on demonstrating the likelihood of positive economic impact on the region without requiring as much detailed documentation as actual or exemplary project proposals.

What projects should be filed as Hypothetical Projects?

These projects should be filed as Hypothetical Projects.

  • Incomplete projects or not shovel-ready projects
  • A project that requires a change in size, location, or scope.

Filing a project as a hypothetical one is advisable when potential changes, such as alterations to the hotel flag or neighborhood, are anticipated, or when the project lacks specific, verifiable details. This approach allows Regional Centers to gain USCIS designation based on general predictions of positive economic impact while leaving room for future adjustments.

What are the requirements for Hypothetical, Actual and Exemplar project proposals?

Below are the key requirements for Hypothetical, Actual and Exemplar project proposals in the EB-5 program.

Hypothetical Projects

  • Proposals and Predictions – Must show that the center will “more likely than not promote economic growth, improved regional productivity, job creation, and increased domestic capital investment.”
  • Business Plan
    • Recommended to meet most, if not all, of the Matter of Ho criteria for a smoother approval.
    • No specific requirement for Matter of Ho-compliant business plan, but it is advisable.
  • Deference and Subsequent Filings – USCIS determinations based on hypothetical projects will not be given deference in subsequent filings.

Actual Projects

  • Project must be in advanced stages, often referred to as “shovel-ready.”
  • Construction can start, and the project will have an immediate impact on employment and the economy.
  • Matter of Ho-Compliant Business Plan
    • Must include a Matter of Ho-compliant business plan.
    • Specific evidence and verifiable details required to prove the proposal’s validity.
  • Deference and Subsequent Filings
    • USCIS determinations based on actual projects receive deference in subsequent filings.
    • Predictable outcomes for I-526 petitions with the same material facts and issues.
  • Flexibility for Changes – Small changes can be made to the business plan and supporting documents in subsequent I-526 filings if not material.

Exemplar Projects

  • Template I-526 Investor Form – Involves filing a template I-526 investor form with an I-924 application, including an actual project proposal.
  • Comprehensive Matter of Ho Business Plan
    • Requires a complete and comprehensive Matter of Ho business plan.
    • The crux of the application, including a detailed description of the business, structure, objectives, marketing plan, personnel experience, competitive analysis, required licenses and permits, staffing timetable, job descriptions, budget, and financial projections.
  • Compliance Review – Submission of an exemplar project allows for a compliance review of organizational and transactional documents to ensure compliance with the EB-5 program.
  • Pre-Approval and No Changes Allowed
    • USCIS pre-approves the project if all necessary elements are included and sufficient detail is provided.
    • No changes to supporting documentation, including the business plan, are permitted in future petitions.

What are the Benefits of Investing in Exemplar, Actual and Hypothetical EB-5 projects?

Investing in Exemplar, Actual, and Hypothetical EB-5 projects each offers unique benefits, catering to varying levels of commitment, flexibility, and certainty for investors in the EB-5 program.

  • Exemplar EB-5 Projects
    • Pre-Approval Assurance: USCIS-certified compliance with EB-5 regulations.
    • Faster Processing: Shorter adjudication times for investor-specific documents.
    • Risk Reduction: Lower investment risk with pre-approved critical project aspects.
    • Streamlined Due Diligence: Easier project selection and evaluation.
  • Actual EB-5 Projects
    • Real-Time Investment: Immediate participation in ongoing projects.
    • Direct Job Creation Impact: Direct contribution to job creation, a key EB-5 requirement.
    • Tangible Progress: Witness and assess project performance in real-time.
    • Flexibility in Project Selection: A broader range of projects to choose from.
  • Hypothetical EB-5 Projects
    • Flexibility in Planning: Conceptual projects with more planning flexibility.
    • Innovative Concepts: Opportunity to engage in projects with unique concepts.
    • Potential for Early Investment: Chance to invest in early project stages.
    • Higher Risk-Reward: Potential for greater rewards with higher associated risk.

Which EB-5 project is the best to invest in?

The best EB-5 project to invest in depends on individual priorities. Hypothetical projects are suitable for those not ready for specific projects because they offer initial approval but lack deference in subsequent filings. Actual projects are ideal for shovel-ready projects with some flexibility because they provide flexibility for changes and deference for subsequent filings. Exemplar projects are suitable for those fully committed to a specific project because they offer the highest certainty for future filings but don’t allow changes. EB-5 investors should consider their goals, risk tolerance, and project details. They should also seek professional advice for informed decisions.

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