Earlier this month, USCIS activated its form for the registration of direct and third-party promoters in the EB-5 industry.
Immigration agents, foreign finders, and referral partners have played a vital role in developing the EB-5 industry over the past two decades. These companies can range from large, 500-person registered migration agents in Asia to single-person independent real estate agents in Latin America. All of these promoters work with high-net-worth families interested in moving to the United States and are typically compensated for the assistance they provide investors in finding the right EB-5 regional center to work with for their investment.
Last year, when Congress passed the EB-5 Reform and Integrity Act, it outlined new regulations for the EB-5 program. This included specific language focused on promoters of EB-5 investment offerings, with a clear requirement that they register with USCIS. The I-956K form, which USCIS published on January 4, 2023, is the implementation of that law.
Like many new forms, the I-956K raises questions that have not been addressed in the instructions or in any published guidance at this point. Although the Federal Register notes there is an additional 30-day public notice period to address questions and concerns about this form (among other regional center program forms), it does not change the fact that Form I-956K is considered active and that promoters are required to register.
LCR Capital Partners works with a number of firms that promote the EB-5 visa. Since we began managing EB-5 project funds, we have kept an eye out for how these firms promote the program, because we want the people we work with to follow the regulations, and we never want to be associated with companies that mislead their investors. We recommend that our partners register, and we’ve been encouraged that the form is not overly complicated and does not require the payment of any filing fee.
While we can’t help our partners register, we have identified EB-5 immigration attorneys that can help them if needed or desired.
The Requirements of the EB-5 Reform & Integrity Act
Since questions still remain about the form, we recommend that people look at the underlying law that drives the forms and regulations. The section of the EB-5 Reform & Integrity Act that relates to promoters is titled (K) Direct and Third-Party Promoters.
In this part of the Act, the legislation requires all promoters to:
- register with USCIS;
- certify that they are not ineligible for involvement in the program;
- agree to follow guidelines for accurately representing the program; and
- agree to guidelines describing permissible fee arrangements under US securities and immigration laws.
Implementation of the law through the I-956K Form
In Part 1 – Type of Registration, the form asks registrants to indicate if they are a “direct promoter,” a “third-party promoter,” and/or a “migration agent.” Unfortunately, USCIS has not yet defined these terms. Because this lack of clarity has caused confusion across the industry, in November 2022 the EB-5 Securities Roundtable published a proposed set of definitions. This document recommends defining “direct promoters” as people or companies affiliated with an EB-5 entity like a regional center, EB-5 fund manager, new commercial enterprise (NCE), or job creation entity (JCE). The same document proposes that “third-party promoters” encompass all companies and individuals, including “migration agents” registered in their respective countries, that promote EB-5 investments but are not affiliated with an RC, NCE or JCE.
In Part 3 – Written Agreements, the form requires registrants to disclose all written agreements that the promoter has executed. The RIA requires written agreements to be maintained by the regional center, NCE, and/or affiliated JCE. The I-956K form allows for amendments to be submitted, as and when promoters execute new written agreements or revise the terms of their existing agreements. Each written agreement executed with any NCE or regional center must be reported through the form to USCIS. The instructions, which are considered regulations under US law, clearly state that the written agreement must also be attached to the registration form. In addition to the names of contracts, this section also asks for RC and NCE IDs to be included, if available.
Other Important Sections and Information
- In Part 2 – Registrant Information, the form indicates that either individuals or organizations can register. It also asks if the registrant is employed to work as a promoter or a promoter on behalf of another promoter. This language implies that USCIS anticipates that subagents may be engaged.
- In Part 4 – Bona Fides of the Promoter, the form applies the same standards used for regional center managers to promoters to ensure that bad actors are not promoting EB-5 investments.
- In Part 5 – Required Certification, the form also refers to the section of the law with the Bona Fides requirements.
How to Register
The registration form can be found here: https://www.uscis.gov/sites/default/files/document/forms/i-956k.pdf
USCIS has provided instructions at the following link: https://www.uscis.gov/sites/default/files/document/forms/i-956kinstr.pdf
- For individuals: a copy of your passport
- For organizations: a copy of organization’s formation and registration documents
- Written agreements
How to file the registration form:
The form should be sent via FedEx, UPS, and DHL to the following address:
Attn: I-956K (Box 660168)
2501 S. State Highway 12, 1 Business Suite 400
Lewisville, TX 75067-8003
It is clear that all companies and individuals that promote the EB-5 program need to register and certify that they are not ineligible to participate in the program. Promoters should register as soon as possible with USCIS to ensure compliance with RIA regulations. While this new form still may have unanswered questions, we expect more clarity and guidance from USCIS as we go forward.
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