{"id":57928,"date":"2023-01-10T04:51:42","date_gmt":"2023-01-10T04:51:42","guid":{"rendered":"https:\/\/eb5visainvestments.com\/wordpress\/?p=57928"},"modified":"2023-01-11T11:28:21","modified_gmt":"2023-01-11T11:28:21","slug":"uscis-publishes-form-i-956k-registration-for-direct-and-third-party-promoters","status":"publish","type":"post","link":"https:\/\/eb5visainvestments.com\/vi\/uscis-publishes-form-i-956k-registration-for-direct-and-third-party-promoters\/","title":{"rendered":"USCIS Publishes Form I-956K, Registration for Direct and Third-Party Promoters<\/i>"},"content":{"rendered":"

On January 4, 2023, United States Citizenship and Immigration Services (\u201cUSCIS\u201d) published Form I-956K<\/a>, Registration for Direct and Third-Party Promoters<\/i>. All direct and third-party promoters, including migration agents, are required to register with USCIS through Form I-956K<\/a> before promoting an EB-5 investment offering.<\/p>\n

We now analyze the major sections of Form I-956K and suggest best practices for registrants.<\/p>\n

\n
An Overview of Form I-956K<\/a><\/h6>\n
Who Must File?<\/a><\/h6>\n
When to File<\/a><\/h6>\n
Filing Fee<\/a><\/h6>\n
What Must Be Included in a Promoter\u2019s \u201cWritten Contract\u201d?<\/a><\/h6>\n
Possible Revisions<\/a><\/h6>\n
Adjusting to New Regulations Under the RIA<\/a><\/h6>\n<\/div>\n

An Overview of Form I-956K<\/h3>\n

<\/p>\n

Form I-956K consists of the following nine parts.<\/p>\n

    \n
  1. Type of Registration<\/li>\n
  2. Registrant Information<\/li>\n
  3. Written Agreements<\/li>\n
  4. Bona Fides of the Promoter<\/li>\n
  5. Required Certification<\/li>\n
  6. Statement, Contact Information, Declaration, Attestation, and Signature of the Promoter or Authorized Individual<\/li>\n
  7. Interpreter’s Contact Information, Certification, and Signature<\/li>\n
  8. Contact Information, Declaration, Certification, and Signature of the Person Preparing this Form, if Other Than the Authorized Individual<\/li>\n
  9. Additional Information<\/li>\n<\/ol>\n

    In Part 1, the registrant must identify as a direct promoter, a third-party promoter, or a migration agent.<\/p>\n

    No definitions for these terms are given on the form or in the Instructions to Form I-956K<\/a>. Moreover, migration agents, especially outside the United States, can go by various names\u2014including immigration consultants and immigration advisors. Many of these individuals act as investment brokers who offer extra services to high-net-worth individuals seeking U.S. residency through an EB-5 investment.<\/p>\n

    <\/p>\n

    As a result, the distinction between third-party promoters and migration agents is somewhat unclear. A key difference between these two roles may be who pays the promoter\u2014i.e., the RC\/NCE or the investor.<\/p>\n

    Additionally, registrants must indicate whether Form I-956K is submitted for an initial registration or an amendment and, if it\u2019s the latter, the type of amendment. The three types of amendments are (i) adding a new written agreement, (ii) removing a written agreement, and (iii) editing an existing written agreement.<\/p>\n

    Part 2 has sections for individuals and organizations. Individual registrants are asked for their full name and previous names or aliases; date of birth; country of birth; all countries of citizenship\/nationality; and alien identification number (if applicable). Organizational registrants must provide the name and type of entity, the state or country of establishment, the locations in which the entity is registered to do business, and a tax identification number. Form I-956K requires complete contact information for all registrants.<\/p>\n

    The final section of Part 2 asks about the registrant\u2019s \u201cEmployment or Association.\u201d Question 20(A) asks, \u201cAre you employed to work as a promoter or otherwise engaged as a promoter on behalf of another promoter?\u201d<\/p>\n

    Form I-956K, its instructions, and the EB-5 Reform and Integrity Act of 2022<\/a> (\u201cRIA”) do not provide a precise definition of \u201cpromoter.\u201d This broad designation may include both people or firms that \u201csell\u201d the investment as well as those who provide services such as advertising or event-organizing and whose compensation does not relate to the investment transaction.<\/p>\n

    The question of who is required to submit Form I-956K is explored in the following section.<\/p>\n

    Part 3 of the form requests information about written agreements (i.e., contracts) between the promoter and regional center, NCE, or JCE. Here, the promoter must inform USCIS of all projects or business ventures they promote.<\/p>\n

    In Part 4, registrants must answer a series of questions about their criminal and civil history as it relates to securities offerings and certain other crimes of high importance to the U.S. government. Questions relate to fraud, regulatory violations, money laundering, drug trafficking, espionage, and genocide.<\/p>\n

    If Form I-956K is completed for an organization, some of the questions will not apply. A suggested practice, explained in the following section, is to have all persons in a position of substantial authority (i.e., those who would be required to submit Form I-956H<\/a> with a regional center or NCE) file Form I-956K.<\/p>\n

    The RIA requires all information submitted to USCIS to be \u201ccertified.\u201d Similar to the other new or updated EB-5 forms released following the enactment of the RIA, Part 5 of Form I-956K requires the signature, name, and contact information of the \u201ccertifier.\u201d In most cases, the certifier will also be the \u201cauthorized individual\u201d who must complete Part 6.<\/p>\n

    The form allows for either<\/i> the promoter or an authorized individual to sign. A promoter based outside the United States could have an attorney or consultant in the United States handle the completion and filing of Form I-956K. And interestingly, nothing in the (currently published) regulations precludes a regional center or NCE from certifying and signing on behalf of its direct or third-party promoters.<\/p>\n

    Parts 7, 8, and 9 of Form I-956K are standard to every USCIS form and require no further analysis or special explanation.<\/p>\n

    Who Must File?<\/h3>\n

    <\/p>\n

    The instructions state, \u201cThe Form I-956K… must be completed by each person acting as a direct or third-party promoter (including migration agents) of a regional center, any new commercial enterprise (NCE), an affiliated job-creating entity (JCE), or an issuer of securities intended to be offered to client investors in connection with a particular capital investment project.\u201d The I-956K USCIS page<\/a> states the same.<\/p>\n

    The operative word here is \u201cperson.\u201d Does this mean both natural persons and legal persons (e.g., corporations)?<\/p>\n

    As a practical matter, there are likely very few natural persons who are counterparties to contracts with regional centers and NCEs. Most one-person operations are organized as an LLC or its foreign equivalent. Form I-956K has space for both individuals and organizations, which makes clear that USCIS wants both natural persons and legal persons to register.<\/p>\n

    Question 20(D) in Part 2 asks, \u201cIn what capacity are you employed by or otherwise associated with the promoter? (Select all that apply),\u201d and gives the following options.<\/p>\n