A practical guide to compliance with U.S. securities broker-dealer laws for regional centers and project developers using EB-5 financing

Are regional centers really required to register as broker-dealers under U.S. securities laws?

Recent articles have suggested that every United States Citizenship and Immigration Services (“USCIS”)-approved regional center which pools foreign investor funds for EB-5 investment offerings sold to foreign investors may be required to register as securities broker-dealers under U.S. securities laws. In addition, it has been suggested that the principals or employees of regional centers must be registered as licensed “associated persons” of a securities broker-dealer under U.S. securities laws. We agree that it is extremely important to conduct EB-5 investment offerings in compliance with all applicable securities laws, but we believe there are better ways of complying without registration as a broker-dealer. In this article, we will answer some of the most frequently asked questions we receive from our clients using EB-5 financing for their projects, and offer some practical guidelines for regional centers and project developers to conduct EB-5 investment offerings in compliance with the regulations and policies of the Securities and Exchange Commission (“SEC”).

Do broker-dealer registration requirements apply to EB-5 offerings that are exempt from U.S. securities laws?

Yes. Many people do not realize that even if the offering of EB-5 investment securities is exempt from registration under U.S. securities laws, every person who sells EB-5 investments is still subject to the requirements for broker-dealer registration or exemption. In this article, we are focused on the SEC registration requirements and exemptions that apply to people engaged in the sale of EB-5 investments, whether they are selling here in the U.S. or outside the U.S. There are also state laws that apply to registration of broker-dealers, but for securities offerings that take place in more than one state, federal laws and regulations are primary, and we therefore focus on federal requirements in this article.

Why does it matter to a regional center or a project developer whether or not the people selling EB-5 offerings are registered or not?

Regional center operators should be very concerned, because they will not want to be subject to regulatory enforcement actions by the SEC or private actions by unhappy investors seeking rescission. Regulatory action by the SEC could in turn lead the USCIS to revoke approval status for regional centers who are found to be in violation of U.S. securities laws. It is also possible that the SEC could issue regulatory orders requiring EB-5 offerings to be terminated if they are being conducted in violation of U.S. securities laws. Project developers should be concerned because even if they do not themselves violate securities laws, the EB-5 offering for their project could be terminated without funding. Even if the offering is successfully closed, EB-5 investors in some states may have rights to rescind their purchase of an EB-5 investment and receive their money back. In that case, EB-5 investors could make claims against both the regional center and the project developer who receives the funds raised by the regional center. Therefore, all parties involved in the EB-5 financing process have a stake in making sure that EB-5 offerings are conducted in compliance with the securities broker-dealer registration laws and regulations.

Aren’t most EB-5 offerings sold outside the U.S. to non-U.S. persons?

Yes, the EB-5 investment program is, by design, a program that targets investment by non-U.S. persons in U.S.- based businesses. Because EB-5 investments (usually in the form of limited partnership or limited liability company interests) are aimed at non-U.S. persons seeking visas to enter the U.S., EB-5 investments are almost always sold outside the U.S.

The usual practice is to engage one or more non-U.S. marketing agents in the country in which the EB-5 investments are being sold. They solicit investors and organize meetings with potential subscribers in EB-5 investments. However, some regional centers or project owners may engage U.S.-based companies to assist in selling EB-5 investments in foreign countries, and this is a problem under U.S. securities laws.

In addition, some regional centers send their own personnel to abroad to assist in marketing EB-5 investments to non-U.S. persons, and this is one reason that some commentators believe that regional centers may be required to register as broker-dealers under U.S. securities laws.

Who is required to register as a broker-dealer to conduct an EB-5 offering outside the U.S.?

The SEC approaches the issue with a territorial approach in applying the U.S. broker-dealer registration requirements to the international operations of broker-dealers. Under this approach, the SEC has rules for non-U.S. persons (such as foreign broker-dealers) and U.S. persons selling offerings of U.S. securities inside or outside the U.S. In general, the SEC’s approach is as follows for each category of offering:

1. Non-U.S. persons may sell securities entirely outside the U.S. to non-U.S. buyers without registration as a broker-dealer under U.S. Securities laws.
2. Non-U.S. persons who sell securities to buyers inside the U.S., other than foreign persons temporarily within the U.S., are required to register or have an exemption from registration as a broker-dealer under U.S. securities laws.
3. U.S. persons who sell securities to non U.S. buyers inside or outside the U.S. are required to register or have an exemption from registration as a broker-dealer under U.S. securities laws.

Therefore, any person or company based in the U.S., including a regional center or “marketing agent,” who solicits or sells EB-5 investments inside or outside the U.S. will either be required to register as a securities broker-dealer or have an exemption from registration under U.S. securities laws.

How does a regional center qualify for an exemption from registration as a securities broker-dealer?

Regional centers typically act as the general partner or manager of the entity that is selling EB-5 investments, and when that is the case, the officers, directors and employees (generically referred to as “associated persons”) of the regional center will primarily rely upon SEC Rule 3a-4. It provides several possible ways to comply with the exemption, two of which are relevant to EB-5 offerings. One way is for associated persons of the regional center who have substantial regular duties for the regional center other than solicitation of EB-5 investments, who are not associated persons of a broker or dealer and are not compensated for their solicitation activities, to participate in no more than one EB-5 offering every 12 months. These conditions do not restrict the manner in which the associated persons may participate in solicitations, as long as they are not paid based on the amount of investments they sell, and they do not participate in more than one offering each year.

However, for regional centers that sponsor more than one offering per year, those conditions will not be met. In that case, the best way for a regional center to comply with the Rule 3a-4 exemption is to limit the activities of its associated persons to preparing or delivering written (not oral) communications regarding the offering, and/or responding to inquiries of potential purchasers in communications initiated by potential purchasers, using information contained in the offering documents provided to investors in the EB-5 offering. In that case, it is necessary for the regional center to engage either a U.S. securities broker-dealer or a non-U.S. broker to solicit EB-5 investments, and have regional center personnel play a more limited role.

What are some of the other securities broker-dealer issues related to EB-5 offerings?

Complying with U.S. securities broker-dealer laws and their exemptions can be challenging for some regional centers, particularly those that conduct more than one offering every 12 months. To avoid potential claims by regulators or investors, it is important that all regional centers have systems and procedures in place to address these issues and others, including the following:

• Is it possible to structure a consulting arrangement with a U.S. based company that would not violate broker-dealer laws?
• Is it legal to pay finder’s fees to U.S. persons for investors in EB-5 offerings?
• Can a regional center or project developer accept referrals of investors from U.S. persons such as immigration attorneys?

Every regional center should examine how it currently conducts its EB-5 offerings, and make any changes necessary to comply with the securities broker-dealer exemption requirements. Project developers seeking EB-5 financing should ask the regional center they are working with to verify that their selling procedures are in compliance with U.S. securities laws.

Would it be easier or better for the regional center to register as a broker-dealer rather than try to avoid registration?

Generally no, because broker-dealer registration requires that every person who engages in solicitation activities take and pass difficult examinations on U.S. and state securities laws. In addition, registered broker-dealers are required to comply with extensive supervisory and record keeping procedures, and are subject to regulatory inspections by FINRA (the self-regulatory organization that all broker-dealers are required to join). FINRA will generally require that a new broker-dealer have one or more management level persons who have previously been licensed and have several years’ of prior experience in the U.S. securities business before it will allow a new broker-dealer to join FINRA – and membership is generally a requirement for registration with the SEC. Many regional centers will not have the ability to undertake compliance with all of these requirements. Therefore, compliance with the exemptions from broker-dealer registration will be the likely choice of most regional centers.

What is the best way to assure compliance with the requirements for exemption from broker-dealer registration?

We have described the general guidelines in this article for compliance with these requirements. We would recommend that every regional center review its practices for sales of EB-5 investments with securities counsel to verify their compliance with these requirements. We also believe it is important to have documentation of the efforts made to comply with the requirements, so that in the event of an inquiry from the SEC or an investor, the regional center has evidence of the steps it has taken to comply with the securities laws. As securities attorneys with substantial experience in EB-5 offerings, we offer best practices training programs and practical solutions to help our clients review their procedures and document their compliance with U.S. securities laws. The EB-5 program offers substantial benefits to U.S. businesses and communities, and helping regional centers and project developers comply with U.S. securities laws is vital to the continued success of the program.

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Catherine DeBono Holmes is the chair of JMBM’s Investment Capital Law Group, and has practiced law at JMBM for over 30 years. She specializes in EB-5 immigrant investment offerings and hotel and real estate transactions made by Chinese investors in the U.S. Within the Investment Capital Law Group, Cathy focuses on business formations for entrepreneurs, private securities offerings, structuring and offering of private investment funds, and business and regulatory matters for investment bankers, investment advisers, securities broker-dealers and real estate/mortgage brokers. Contact Cathy at CHolmes@jmbm.com or 310.201.3553.