Creating a Quality EB-5 Business Plan for Form I-956F

What is an EB-5 Business Plan?

Within the context of the EB-5 industry, business plans are essential components of all I-526(E) and I-956F petitions and are used to demonstrate that a project satisfies EB-5 program requirements. The overall purpose of a business plan is to allow United States Citizenship and Immigration Services (USCIS) — the agency that oversees the EB-5 program — to gauge the project’s future and suitability to the EB-5 program. As such, EB-5 business plans should be highly-detailed, comprehensive, credible, and well-organized to ensure the information is conveyed as efficiently as possible.

As aforementioned, all I-526(E) and I-956F petitions must include a business plan. Depending on their chosen investment strategy, EB-5 investors will either create their own business plan or use a preexisting plan created by an EB-5 regional center. The latter route is possible only through regional center investment, in which an EB-5 regional center sponsors an investment project. In such circumstances, the regional center itself will create the business plan, and all associated investors will use it in their I-526E petitions.

In this piece we will cover business plans for I-956F petitions, filed by regional centers to request USCIS approval for a particular investment project. The USCIS Policy Manual Chapter 5(B) specifies that “A project application must include a credible and comprehensive business plan that contains, at a minimum, a description of the business, its products or services (or both), and its objectives.” Policy Manual Chapter 2(B) further defines a comprehensive business plan based on the precedent decision Matter of Ho.

While the official USCIS guidance provides a partial checklist for an EB-5 business plan, a good business plan needs more than just a table of contents. To best ensure success, petitioners must consider what the document needs to accomplish and organize around those objectives,

Goals of an EB-5 Business Plan and How to Approach Them

Goal 1: Create a Business Proposal Compatible With EB-5 Requirements

When creating a business plan, it is best to approach it with respect to the core EB-5 requirements; investment of capital, job creation, targeted employment areas (TEAs), and regional center sponsorship. While a business proposal may look pretty on paper, this will not be enough to save a plan that is incompatible with the EB-5 program.

Moreover, the Administrative Appeals Office (AAO) record of EB-5 denials is full of plans that, while valid from a business perspective, do not fit with EB-5 requirements, e.g. plans that include unacceptable debt arrangements, job creation via acquisition, and direct job creation by an affiliate or third-party management entity.

In the end, a knowledgeable and trustworthy business plan writer understands the practical application of EB-5 requirements, can identify potential problems or dealbreakers within a proposal, and will not draft an EB-5 plan that has no chance of success.

Goal 2: Provide a Document That is Appropriate for Filing with Form I-956F

Keep the evidence expectations in mind when compiling supporting documentation for an I-956F plan and format the EB-5 plan document with summaries and content headings that align with the USCIS I-956F adjudication checklist. Said checklist is partially based on Matter of Ho and expanded upon with items disclosed in Requests for Evidence (RFE).

One must also consider the circumstances under which the plan will be read and adjudicated: by an adjudicator who may be pressed for time, unable to easily request clarification, and will look for third-party evidence that they can verify themselves.

Goal 3: Avoid Content that May Lead to I-956F Denial

Discrepancies are, by far, the most common reason behind EB-5 denials. Therefore, one should work carefully to avoid internal discrepancies within the EB-5 plan, inconsistencies with other parts of the application, mismatch with core EB-5 requirements, and deviations from how things are projected to turn out later on in the investment’s lifetime.

In practice, businesses and their respective plans are dynamic. As such, it takes incredible knowledge and care to condense that information into a moment-in-time document that remains consistent throughout application documents. Identifying and resolving apparent discrepancies before USCIS has a chance to label them as faults is key to this process.

Goal 4: Outline a Feasible Business Roadmap

When it comes to schedule, budget, and financial projections, it is best practice to present the most conservative feasible scenario. Strategize about areas of the plan most liable to change and infuse flexibility into those aspects as much as possible — avoid unnecessary detail and include caveats and alternatives.

Consider the evidence that will be needed to support business plan projections and shape the plan around such evidence. Ideally, the EB-5 plan should set the client up to over-deliver on promises, avoid the need for expensive amendment filings, steer clear of material change, and avoid USCIS evidence requests.

Goal 5: Tell a Coherent Story that is Compelling and User-Friendly to Investors and USCIS

In essence, an EB-5 plan must tell the story of capital investment deployed to create jobs and underpin an immigration opportunity. However, special care should be taken to ensure the plan is easy to understand without sacrificing any necessary information.

Prospective EB-5 investors and USCIS officers will be reading these plans, so it is in everyone’s best interest for the content to be straightforward and accessible. Add special emphasis to the areas EB-5 investors and USCIS need to find about use of investment, job creation, and how the plan aligns with immigration considerations. A good EB-5 investment plan is responsive and relevant to EB-5 specific questions and considerations.

Are Good EB-5 Business Plans Worth the Effort?

The EB-5 sphere is full of poorly-made business plans — unorganized collages of sloppily compiled content that don’t bother to tell a clear or concise story. Surprisingly, such documents can still succeed when the reader simply accepts the plan because that’s easier than actually reading it.

While an EB-5 plan can get by on a nice cover (as long as investors and USCIS adjudicators don’t take the time to open and read the plan), this only sets a project up for problems down the road. All it takes is one RFE or litigation to expose any errors, inconsistencies, omissions, and misrepresentations. Good projects deserve professional business plans, and attractive, relevant documents are key in supporting investment decisions and immigration approvals.