EB-5 Offering Documents

Investment amount, administrative fees, closing conditions, representations, transfer restrictions, and investor obligations should be consistent with the PPM and governing agreement.

The subscription agreement documents the investor's commitment to the offering and should be reviewed for both securities and immigration consequences. It commonly addresses the subscription amount, administrative fee, conditions to closing, investor representations, transfer restrictions, escrow arrangements, and procedures if the immigration filing is denied or withdrawn. Those terms should be consistent with the private placement memorandum and the governing partnership or operating agreement. The agreement should not create a guaranteed return, mandatory redemption right, or other arrangement inconsistent with the EB-5 at-risk requirement. Amounts described in the subscription documents should also reconcile with the investor's actual transfer records.

Management rights, voting rights, distributions, redeployment authority, dissolution, and repayment provisions can all affect EB-5 analysis.

The partnership or operating agreement defines the investor's legal interest in the new commercial enterprise and can affect several EB-5 issues. Management and voting provisions may be relevant to the investor's required engagement in management. Distribution, dissolution, redemption, repayment, and redeployment provisions can affect whether capital remains at risk and whether the investor has an impermissible contractual right to repayment. The agreement should also identify the manager or general partner, decision-making authority, admission of investors, and treatment of project proceeds. These terms should match the private placement memorandum, subscription agreement, and the structure described in Form I-956F.

Immigration risks should not be described in a way that promises approval or guaranteed return of capital.

The private placement memorandum generally explains the offering, project, capital structure, use of proceeds, fees, conflicts, management, and material risks. Immigration-related risk disclosures should accurately describe that USCIS approval, visa issuance, job creation, and return of capital are not guaranteed. The PPM should not promise a fixed immigration outcome or describe repayment terms that conflict with the statutory at-risk rules. Project facts in the PPM should match the business plan and Form I-956F, including the NCE, JCE, investment amount, financing, job-creation methodology, and project location. Material inconsistencies can create both immigration and securities concerns.

Current I-956F instructions expressly require marketing materials used or prepared for use in connection with the offering.

Marketing materials can become part of the Form I-956F record and should be reviewed before they are distributed. Statements about project location, rural or reserved-visa eligibility, processing priority, job creation, expected returns, exit timing, redeployment, or immigration approval should be consistent with the formal offering documents and the project filed with USCIS. Promotional summaries should not convert qualified legal or financial assumptions into guarantees. Regional centers and issuers should preserve the versions actually used in the offering because later discrepancies can complicate project adjudication, investor petitions, compliance reviews, or questions about whether investors received materially different information.

The RIA and I-956F require regional centers and issuers to address federal and state securities-law compliance.

EB-5 immigration eligibility does not replace compliance with federal or state securities law. Regional centers, issuers, promoters, broker-dealers, investment advisers, and other participants may have separate regulatory obligations depending on the offering and their roles. The EB-5 Reform and Integrity Act also added program-specific integrity and compliance requirements. Immigration counsel should therefore identify potential securities issues without treating USCIS project approval as a securities-law determination. Offering exemptions, solicitation practices, compensation arrangements, conflicts, disclosures, and marketing activity should be coordinated with qualified securities counsel where appropriate, while the immigration record remains consistent with the actual terms of the offering.

• Investment amount
• Administrative fee
• At-risk provisions
• Redemption rights
• Repayment provisions
• Redeployment
• Management rights
• Conflicts
• Fees and compensation

A cross-document review should test the offering as one transaction rather than examining each document in isolation. The investment amount, administrative fee, use of proceeds, ownership interest, management rights, escrow conditions, repayment provisions, redemption rights, redeployment authority, fees, conflicts, and project description should align across the PPM, subscription agreement, governing agreement, loan or equity documents, and Form I-956F. The review should also compare marketing materials with the formal disclosures. Any amendment that changes a material project or investor term should be evaluated for its immigration effect and for whether USCIS or investors must receive updated information.